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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LBRARY 


CASES 


ON 


PUBLIC    SERVICE    COMPANIES: 

PUBLIC  CARRIERS,  PUBLIC  WORKS,  AND 
OTHER  PUBLIC  UTILITIES. 


BY 

JOSEPH   HENRY   BEALE,  Jk., 

PROFESSOR    OF    LAW    IN    HARVARD    UNIVERSITY;    PROFESSOR   OF    LAW 
IN    THE    UNIVERSITY    OF    CHICAGO  J 


BRUCE   WYMAN, 

LECTURER   ON    LAW    IN    HARVARD   UNIVERSITY. 


CAMBRIDGE: 
THE   HARVARD  LAW  REVIEW   PUBLISHING  ASSOCIATION. 

1902. 


Copijrifjht,  190S, 
By  Josli'H  IIknuy  Bkale,  Jr. 


T 

inc./. 


Oiitbfrstln  Prrss : 
John  Wilson  and  Son-,  Cambridge,  U  S.  A. 


■    N 


PREFACE, 


This  collection  of  cases  is  designed  to  show  the  development 
of  the  law  of  public  service  in  its  most  modern  forms :  the  public 
carriers,  the  public  works,  and  the  other  public  utilities.  The 
distinction  between  the  private  callings  —  the  rule  —  and  the 
public  callings  —  the  exception  —  is  a  striking  feature  of  the  law 
governing  business  relations  as  it  is  to-day.  The  causes  of  the 
division  are  economic  rather  than  strictly  legal.  Free  competition, 
the  very  basis  of  the  modern  social  organization,  superseded 
almost  completely  medieval  restrictions,  but  it  has  just  come  to 
be  recognized  that  the  process  of  free  competition  fails  in  some 
cases  to  secure  the  public  good,  and  it  has  been  reluctantly 
admitted  that  some  control  is  necessary  over  such  lines  of  indus- 
try as  are  affected  with  a  public  interest.  At  this  point  the 
problem  of  public  callings  becomes  a  legal  one.  Principles  of 
law  well  known  in  ancient  times  have  been  extended  (with  hesi- 
tation at  first)  to  a  rapidly  increasing  number  of  callings. 

No  one  can  carefully  study  the  authorities  on  this  subject 
without  feeling  that  we  are  just  entering  upon  a  great  and  impor- 
tant development  of  the  common  law.  What  branches  of  industry 
will  eventually  be  of  such  public  importance  as  to  be  included  in 
the  category  of  public  callings,  and  to  what  extent  tlie  control  of 
the  courts  will  be  carried  in  the  effort  to  solve  by  law  the  modern 
economic  problems,  it  would  be  rash  to  predict.  Enormous 
business  combinations,  virtual  monopolization  of  the  necessaries 
of  life,  the  strife  of  labor  and  capital,  now  the  concern  of  the 
economist  and  the  statesman,  may  prove  susceptible  of  legal  con- 


jy  PREFACE. 

trol  through  the  doctrines  of  the  law  of  public  callings.  These 
doctrines  are  not  yet  clearly  defined.  General  rules,  to  be  sure, 
have  been  established,  but  details  have  not  been  worked  out  by 
the  courts  ;  and  upon  the  successful  working  out  of  these  details 
depends  to  a  large  extent  the  future  economic  organization  of  the 
countiy.  Only  if  the  courts  can  adequately  control  the  public 
service  companies  in  all  contingencies  may  the  business  of  these 
companies  be  left  in  private  hands. 

As  a  result  of  the  present  state  of  the  law  it  has  seemed  essen- 
tial to  bring  together  (as  has  not  heretofore  been  done)  examples 
of  every  sort  of  public  calling.  Here  will  be  found  decisions  con- 
cerning coaches  and  ships,  the  turnpike  and  the  toll-bridge,  the 
railway  and  the  tram,  the  inn  and  tlie  warehouse,  the  telegraph 
and  the  telephone,  the  purveyors  of  light  and  water.  Materials 
are  thus  provided  for  analogy  and  comparison,  and  for  a  careful 
study  of  the  rights  and  duties  of  persons  engaged  in  every  sort  of 
j)ublic  employment. 

The  cases  in  this  collection  are  so  arranged  as  to  present  three 
principal  issues :  the  nature,  the  obligations,  and  the  rights  of 
public  calling.  In  the  fii-st  chapter  the  cases  bear  upon  the  gen- 
eral principle  (so  general  as  to  require  for  its  understanding  a 
detailed  examination  of  many  examples)  that  "  when  the  o\Mier 
of  property  devotes  it  to  a  use  in  which  the  public  has  an  interest, 
he  in  effect  gi-ants  to  the  public  an  interest  in  such  use,  and  must 
to  the  extent  of  that  interest  submit  to  be  controlled  by  the 
public  for  the  common  good,  as  long  as  he  maintains  the  use." 
In  the  second  chapter  the  obligations  of  public  calling  are  exam- 
ined, and  are  found  to  l)e  fourfold:  to  serve  all,  with  adequate 
facilities,  for  a  n-asonalile  compensation,  and  witliout  discrimina- 
tion. Without  the  enforcement  of  all  these  obligations  the 
courts  could  not  prevent  public  service  companies  from  becoming 
instruments  for  tlie  oppression  of  individuals  and  for  the  disrup- 
tion (if  the  industrial  order.  In  the  tliird  cliapter  is  examined 
tlif  fxtfiit  of  tlic  riglit  of  a  public  service  company  to  carry  on 
its  busines.s  in  its  own  way :  to  make  regulations  for  the  use  of 
its    property  by   the    public,  and   to  modify  its  undertaking  by 


PREFACE.  V 

contracts  with  individuals.  Here  the  principal  subject  of  inquiry 
is  the  limitation  upon  such  general  rights  caused  by  the  pubhc 
obligations  considered  in  the  preceding  chapter. 

This  collection  is  intended  primarily  for  use  as  a  basis  for  class 
discussion  in  a  law  school,  and  the  choice  and  arrangement  of 
cases  have  been  directed  to  that  end.  Cases  have  been  abridged 
with  freedom,  but  the  fact  has  always  been  indicated.  The  anno- 
tation is  not  exhaustive,  but  is  intended  to  draw  the  attention  of 
students  to  a  variety  of  cases,  valuable  for  purposes  of  study, 
which  bear  upon  the  subjects  discussed  in  the  text.  In  the 
make-up  of  this  collection  almost  all  of  the  authorities  printed  in 
Beale's  Cases  on  Carriers  have  been  included  as  the  foundation 
of  the  present  work. 

J.  H.  B.,  Jr. 
B.  W. 


TABLE    OF    CONTENTS 


CHAPTER    I. 

Page 

NATURE   OF  PUBLIC   CALLING 1 


CHAPTER   II. 

OBLIGATIONS   OF   PUBLIC    CALLING 100 

Section      I.     To  Serve  All 100 

Section     II.     With  Adequate  Facilities 192 

Sectiox  III.     For  Reasonable  Compensation 283 

Section   IV.     Without  Discrimination 354 


CHAPTER   III. 

RIGHTS  OF  PUBLIC   CALLING 446 

Section      I.     To  Make  Regulations 446 

Section    II.     To  Enter  into  Contracts 493 


INDEX 545 


TABLE   OF   CASES. 


[only  cases  printed  in  the  text  are  included.] 


A. 


Adams  Express  Co.,  Buckland  v.     .  135 

Adams,  Grace  i- 510 

Alabama,  &c.  K.  R-,  Interstate  Com. 

r 433 

Alabama  Great  Southern  R.  R.,  For- 

see  y 460 

Albina  L  &  W.  Co.,  Hatigen  u.   .     .  31 

Allen  V.  Sackrider 5 

Allnutt  ;;.  Inglis 70 

Ames,  Smytlie  v 347 

Anchor  Line  v.  Dater 516 

Anonymous 1 

Anonymous    .     .          192 

Anonymous    .     .          '^83 

Anonymous 361 

Associated  Press,  Inter-Ocean  Co.  v.  53 
Atchison,  &c.  R.  R.  v.  Denver,  &c. 

R.  R 265 

Atlanta  Bagscage  &  Cab  Co.,  Kates  v.  176 

Ayres  v.  Chicago,  &c.  R.  R.     .     .     .  223 


B. 


Baily  v.  Eayette  Gas-Fuel  Co.      .     .  412 

Ballentine  i-.  No.  Missouri,  &c.  R.  R.  222 
Baltimore,  etc.  Telegraph  Co.,  Clies- 

apeake,  &c.  Telephone  Co.  v.    .     .  183 

Baltimore  R.  R.,  Interstate  Com.  v.  392 

Barrett  v.  Market  St.  Ry 297 

Barstow,  Orne  v 490 

Bastard  v.  Bastard 283 

Batton  V.  South,  &c.  R.  R.  Co.  .  .  208 
Beecher,  Evergreen  Cemetery  Assn. 

r 26 

Belger  u.  Dinsmore 532 

Bennett  v.  Dutton 105 

Benson,  Memphis,  &c.  R.  R  Co.  v.  .  196 
Bienville  Water  Supply  Co  ,  Mobile 

V 417 

Blossom  V.  Dodd 513 

B.  &  M.  R.  R.,  Quimby  v 506 

Boston,  Ladd  v 414 

Boston,  &c.  R.  R.,  Concord,  &c.  R.  R. 

V 239 


Bowling  Green,  Cincinnati,  &c.  R.  R. 

Co.  I- 44 

Brass  i'.  Storser 89 

Bremner  v.  Williams 192 

Brown  v.  Memphis,  &c.  R.  R.  .     .     .  116 

Brown  v.  W.  U.  Telegraph  Co.  .  .  475 
Brush  Electric  Co.  v.  Consolidated 

Subway  Co 30 

Brymer  v.  Butler  Water  Co.    .     .     .  330 

Buckland  v.  Adams  Express  Co.       .  135 

Budd,  P.  i; 79 

Burlington,  &c.  R.  R.  Co.  v.  Chicago 

Lumber  Co 290 

Bussey  &  Co.  v.  M.  V.  Transp.  Co.  .  16 
Butcher's  Yard  Co.  v.  Louisville,  &c. 

R.  R 262 

Butler  Water  Co.,  Brymer  v.  .    .     .  330 


Caldwell,  Express  Co.  v 520 

Camden.  &c.  R.  R.  Co.  v.  Hoosey     .  194 

Campbell,  State  p 145 

Canada  So.  Ry.  Co.  ;•.  International 

Bridge  Co 315 

Canton,  Shingleur  v 285 

C.  V.  Delaware,  &c.  Canal  Co.  .  .  405 
Chesapeake,  &c.   Telephone  Co.   v. 

Baltimore,  &c.  Telegraph  Co.      .  183 

Chicago,  &c.  R.  R.,  Ayres  v.    .     .     .  223 

Chicago,  &c.  Ry.  Co.,  Craker  v.   .     .  206 

Chicago,  &c   R.  R.  v.  Gustin    .     .     .  487 

Chicago,  &c.  R.  R.  Co.,  Peniston  v.  .  202 

Chicago,  ■'^c.  R.  R.,  F.  v 226 

Chicago,  &c.  Rd.  i-.  P 243 

Chicago,  &c.  R.  R.  v.  Warbash,  &c. 

R.  R 189 

Chicago,  &c.  R.  R.  v.  Williams  .  .  Ill 
Chicago    Lumber    Co.,    Burlington, 

&c.  R.  R.  Co.  V 290 

Christie,  Ingate  v 7 

Cincinnati,  &c.  R.  R.  Co.  v.  Bowling 

Green 44 

Cincinnati,  &c.   R.  R.   v.  Interstate 

Com 424 


TABLE  OF  CASES. 


Page 

Cincinnati,  &c.  Ry.  Co.,  State  v.  .  .  400 
Citizens'  Bank  v.  Nantucket  S.  B. 

Co 8 

Citizens'  Telephone  Co.,  Gwynn  v.  .  48 
Clinton  Electric  L.  H.  &  P.  Co.  v. 

Snell 311 

Coats,  Fuller  v 451 

Coe  r.  Louisville,  &c.  R.  R.      ...  251 

Coleman,  Jenks  v 100 

Concord,  &c.  R.   R.  v.  Boston,  &c. 

R.  R 239 

Consolidated    Subway    Co.,    Brush 

Electric  Co.  v 30 

Consumers'  Gas  Trust  Co.,  Wood  v.  66 

Cotting  V.  Goddard 316 

Coup  V.  Wabasli,  &c.  Ry.  Co.       .     .  12 

Coupland  i'.  Housatonic  R.  R.  Co.   .  218 

Covington  Yards  Co.  v.  Keith      .     .  256 

Craker  v.  Chicago,  &c.  Ry.  Co.  .  .  206 
Cumberland  Telephone  Co.  v-  Texas, 

&c.  R.  R.  Co 416 


D. 


Dater,  Anchor  Line  v 516 

Davis  V.  Garrett 219 

Delaware,  &c.  Canal  Co.,  C.  v.  .  .  405 
Delaware,  &c.  Canal  Co.,  Penn.  Coal 

Co.  r 446 

Denver,   &c.  R.   R.,   Atchison,   «S;c. 

R.  R.  y 265 

Denver,  &c.  R.  R.  Co.  v.  Hill  .     .     .  2i)2 

Detroit,  &c.  R.  R.,  Interstate  Com.  r.  431 

Devin,  Woods  v 1'jO 

Dinsmore,  Belger  v 532 

Dittmar  r.  New  Braunfels  ....  388 

Dodd,  Blossom  v 513 

Dodge  City,  &c.  Rv.  Co.,  Little  v.     .  64 

D.  R.  Martin,  The 114 

Duane,  Pearson  v 110 

Dulaney,  Louisville  Gas  Co.  v.     .     .  306 

Dutton,'  Bennett  v 105 


E. 


Fames,  Mayhew  v 493 

Eastern  R.  R.,  Sears  '• 483 

Edition  Illuminating  Co..  Gould  v.    .  308 

Evergreen  Cemetery  Assn.  v.  Beecher  26 

?]xpress  Cases 157 

Express  Co.  v.  Caldwell 520 


Farnaworth  v.  Groot 213 

Favetto  Gas-Fuel  Co.,  Baily  v.     .     .412 

Fell  r.  Knight 201 

Ferguson  r.  Met.  Gas  Co 137 

Fitchhurg  U.  R.  /•.  Gage      ....  354 

Fleming  v.  Montgomery  Light  Co.  .  47 
Forsie  v.  Alabama  (jreat  Southern 

R.  R 460 

Fuller  V.  Coats 451 


G. 

Page 

Gage,  Fitchburg  R.  U.  v 354 

Gardner  v.   Providence    Telephone 

Co 202 

Garrett,  Davis  v 219 

Gisbourn  v.  Hurst 2 

Gloucester  Water  Co.  v.  Gloucester  .  328 

Goddard,  Cotting  v 316 

Goldsboro  Water  Co.,  Griffin  v.  .  .  403 
Gold  Stock  &  Telegraph  Co.,  Shep- 

ard  V 52 

Gordon  Hotels,  Ltd.,  Lamond  v.  .     .  23 

Gordon  v.  Hutchinson 3 

Gould  V.  Edison  Illuminating  Co.     .  308 

Grace  v.  Adams 510 

Grand  Trunk,  Hale  v 124 

Grand  Trunk  Ry.,  Wilson  v.   .     .     .  128 

Graves  i:  Lake  Shore,  &c.  R.  R.       .  540 

Grav,  Robins  &  Co.  v 296 

Griffin  v.  Goldsboro  Water  Co.    .     .  403 

Griswold  v.  Webb 171 

Groot,  Farnsworth  r 213 

Gt.  Northern  Ry.,  Steenerson  v.  .     .  333 

Gustin,  Chicago,  &c.  R.  R.  v.   .     .     .  487 

Gwynn  v.  Citizens'  Telephone  Co.  .  48 


H. 


Hale  r.  Grand  Trunk 124 

Hall,  Pope  V 450 

Harbison  v.  Knoxville  Water  Co.     .  470 

Hart  i\  Pennsylvania  R.  R.      ...  536 

Haugen  v.  Albina  L.  &  W.  Co.     .     .  34 

Hays  V.  Pa.  Co 368 

Henry,  Pate  v 19 

Hildebrand,  Owensboro  (Jas  Co.  v.   .  464 

Hill,  Denver,  &c.  R.  R.  Co.  v.  .     .     .  292 

Iloosey,  Camden,  &c.  R.  R.  Co.  v.    .  194 

Hoover  v.  Pennsylvania  R.  R.  Co.     .  410 

Housatonic  R.  R.  Co.,  Coupland  v.  .  218 

Houston,  &c.  R.  K.  r.  Trust  Co.  .     .  342 

Hoyt,  Western  Transportation  Co.  r.  287 
Hudson    R.  Telephone   Co.,   Postal 

Telegraph  Co.  v 179 

Hurst,  Gisbourn  v 2 

Hutchinson,  Gordon  v 3 


Illinois,  Munn  v 71 

Ilwaco,  &c.  Co.  r.  Oregon,  &c.  Co.    .  275 

Ingate  v.  Christie 7 

Inglis,  Ailnutt  v 70 

International  Bridge  Co.,  Canada  So. 

Ry.Co.  /• 315 

Inter-Ocean  Co.  v.  Associated  Press  53 
Interstate    Com.    r.    Alabama,    &c. 

R.R 433 

Interstate  Com.  r.  Baltimore  R.  R.  .  392 
Interstate     ("om.,     Cincinnati,     &c. 

1{.  R.  r 424 

Interstate  Com.  v.  Detroit,  &c.  R.  R.  431 

Ivens,  Rex  v 21 


TABLE    OF   CASES. 


XI 


J. 


Jackson  v.  "Rogers  .  .  . 
Jenks  V.  Coleman  .  ,  . 
Jones  V.  Newport,  &c.  Co. 


K. 


Page 

1 

100 

240 


Kates  V.  Atlanta  Baggage  &  Cab  Co.  176 

Keith,  Covington  Yards  Co.  v.     .     .  256 

King  V.  Lnellin 100 

Knight,  Fell  v 201 

Knoxville  Water  Co.,  Harbison  v.    .  470 


L. 


Ladd  V.  Boston 414 

Lake  Shore,  &c.  R.  R.,  Graves  v.      .  540 

Lainond  v.  Gordon  Hotels,  Ltd.    .     .  23 

Lawrence  v.  Pullman  Car  Co!      .     .  139 

Levi  y.  Lynn,  &c.  R.  R 11 

Little  V.  Dodge  City,  &c.  Ry.  Co.  .  64 
Little  Rock,  &c.  R.  R.  v.  St.  Louis, 

&c.  R.  R 277 

Lockwood,  Railroad  v 498 

London,  &c.  Ry.  Co.,  Phipps  v.    .     .  420 

Long  Is.  R.  R.,  Root  (7 377 

Lough  V.  Outerbridge 380 

Louisville  Gas  Co.  c.  Dulaney  .  .  306 
Louisville,  &c.  R.  R.,  Butcher's  Yard 

Co.  (' 262 

Louisville,  &c.  R.  R.,  Coe  r.     .     .     .  251 

Louisville,  &c.  Ry.  Co.  v.  Snyder    .  193 

Lowry  v.  Tile  Assn 93 

Luellin,  King  v 100 

Lynn,  &c.  R.  R.,  Levi  v 11 


M. 


Manhattan  Gas  Co.,  P.  y 141 

Mann  Boudoir  Co.,  Searles  ;;.       .     .  199 

Market  St.  Ry.,  Barrett  v.        ...  297 

Matthews,  Thompson  v 20 

Mayhew  v.  Eanies 493 

McDuffee  r.  Portland,  &c.  R.  R.  .     .  140 

McGuire,  W.  U.  Telegraph  Co.  v.    .  463 

Memphis,  &c.  R.  R.  Co.  i\  Benson    .  196 

Memphis,  &c.  R.  R.,  Brown  v.     .     .  116 

Menaclio  v.  Ward 372 

Messenger  v.  Penn.  R.  R 357 

Met.  Gas  Co.,  Ferguson  v    .     .     .     .  137 

Milwaukee,  Milwaukee  Ry.  v.      .     .  336 

Milwaukee  Ry.  r.  Milwaukee       .     .  336 

Milwaukee,  &c.  Ry.  Co.,  Pierce  v.    .  126 

Minneapolis,  Wehmann  r 517 

Mobile  V.  Bienville   Water   Supplv 

Co ".417 

Mobile,  &c.  R.  R.  r.  P 230 

Montgomery  Light  Co  ,  Fleming  i^.  47 

Moulton  r.  St.  Paul,  &c.  Ry.    .     .     .  534 

Munn  V.  Illinois 71 

Mutual  Gas  Co.,  Williams  v.    .     .     .  298 

M.  V.  Transp.  Co.,  Bussey  &  Co.  r.  16 

Mynard  v.  Syracuse,  &c.  R.  R.    .     .  503 


N. 


Nantucket  S.  B.  Co.,  Citizens'  Bank  v 
Nebraska  Telephone  Co.,  Slate  v.  . 
Neel,  W.  U.  Telegraph  Co.  i:  .  . 
New  Braunfels,  Dittmar  r.       ... 

Newport,  &c.  Co  ,  Jones  r 

New  York,  &c.  R.  R.  Co.,  Potts  i:.  . 
No.  Colorado  Irrigation  Co.,  Wheeler 

V 

North  Eastern  Ry.  Co.,  Pounder  v. 
No.  Missouri,  &c.  R.  H.,  Ballentine  r. 
No.  Pacific  R.  R.  v.  Washingtou 
N.  Y.  Central,  &c.  R.  R.  Co.,  P.  u.  . 
N.  Y.  Central,  &c.  R.  R.  Co.,  Tierney 


O. 


Old  Colony  R.  R.  v.  Tripp  .     .     . 
Oregon,  «&c.  Co.,  Ilwaco,  &c.  Co.  i: 

Orne  v.  Barstow 

Outerbridge,  Lough  u 

Owensboro  Gas  Co.  v.  Hildebrand 


Page 

8 
142 
479 
388 
240 
284 

301 
211 
222 
231 

56 

215 


166 
275 
490 
380 
464 


Pate  V.  Henry 19 

Pearson  r.  Duane 110 

Peniston  i:  Chicago,  &c.  R.  R.  Co.  .  202 

Pennington  v.  Phila.,  &.C.  R.  R.  Co.  .  147 
Penn.  Coal  Co.  v.  Delaware,  &c.  Canal 

Co 446 

Penn.  Co.,  Hays  r 368 

Penn.  Co.,  Toledo  A.  A.  &  N.  M.  Ry. 

Co.  r 59 

Pennsylvania  R.  R.,  Hart  v.     .     .     .  536 

Pennsylvania  R.  R.  Co.,  Hoover  v.  .  410 

Penn.  R.  R.,  Messenger  v 357 

Pennsylvania  R.  R  ,  Reese  r.  .     .     .  456 

Penobscot  L.  D.  Co.,  Weymouth  v.  27 

P.  V.  Budd 79 

P.  V.  Chicago,  &c.  R.  R 226 

P.,  Chicago,  &c.  Rd.  r 243 

P.  V.  Manhattan  Gas  Co 141 

P.,  Mobile,  &c.  R.  R.  ;• 230 

P.  V.  N.  Y.  Central,  &c.  R.  R.  Co.     .  56 

Phila.,  &c.  R.  R.  Co.,  Pennington  v.  147 

Phillips  r.  Southern  Ry 489 

Phipps  V.  London,  &c.  Ry.  Co.      .     .  420 

Pierce  v.  Milwaukee,  &c.  Rv.  Co.     .  126 

Pope  V.  Hall "...  450 

Portland  Gas  &  Oil  Co.,  Snyder  i:   .  186 

Portland  Gas  Co.  r.  State   ....  41 

Portland,  &c.  R.  R.,  McDuffee  r.  .  140 
Postal  Telegraph  Co.  v.  Hudson  R. 

Telephone  (^o 179 

Potts  ('.  New  York,  &c.  R.  R.  Co.     .  284 

Pounder  i\  Northeastern  Rv.  Co.      .  211 

Primrose  r.  W.  U.  Telegraph  Co.  .  525 
Providence  Telephone  Co.,  Gardner 

r 202 

Pullman  Car  Co.,  Lawrence  v-      .     .  139 


TABLE    OF   CASES. 


Cincinnati,  &c.  Ry.  Co.,  State  v.  .  .  400 
Citizens'  Bank  v.  Nantucket  S.  B. 

Co 8 

Citizens'  Telephone  Co.,  Gwynn  v.  .  48 
Clinton  Electric  L.  H.  &  P.  Co.  v. 

Snell 311 

Coats,  Fuller  v 451 

Coe  V.  Louisville,  &c.  R.  R.      ...  251 

Coleman,  Jenks  v 100 

Concord,  &c.  R.   R.  v.  Boston,  &c. 

R.  R 289 

Consolidated    Subway    Co.,    Brush 

Electric  Co.  <; 30 

Consumers'  Gas  Trust  Co.,  Wood  v.  66 

Cotting  V.  Goddard 316 

Coup  V.  Wabash,  &c.  Ry.  Co.       .     .  12 

Coupland  v.  Housatonic  R.  R.  Co.   .  218 

Covington  Yards  Co.  v.  Keith      .     .  256 

Craker  v.  Chicago,  &c.  Ry.  Co.  .  .  206 
Cumberland  Telephone  Co.  v.  Texas, 

&c.  R.  R.  Co 416 


D. 


Dater,  Anchor  Line  v 516 

Davis  V.  Garrett 219 

Delaware,  &c.  Canal  Co.,  C.  ;;.  .  .  405 
Delaware,  &c.  Canal  Co.,  Penn.  Coal 

Co.  (' 446 

Denver,   &c.  R.   R.,   Atchison,   &c. 

R.  R.  y 265 

Denver,  &c.  R.  R.  Co.  v.  Hill  .     .     .  292 

Detroit,  &c.  R.  R.,  Interstate  Com.  v.  431 

Devin,  Woods  v 130 

Dinsmore,  Beiger  v 532 

Dittmar  v.  New  Braunfels  ....  388 

Dodd,  Blossom  v 513 

Dodge  City,  &c.  Rv.  Co.,  Little  v.     .  64 

D.  R.  Martin,  The 114 

Duane,  Pearson  v 110 

Dulaney,  Louisville  Gas  Co.  v.     .     .  306 

Dutton,  Bennett  v 105 


E. 


Eames,  Mayhew  v 493 

Eastern  R.  R.,  Sears  '• 483 

Edison  Illuminating  Co..  Gould  v.    .     308 
Evergreen  Cemetery  Assn.  v.  Beecher     26 

Express  Cases 157 

Express  Co.  v.  Caldwell 520 


F. 


Earns  worth  v.  Groot 213 

412 
201 
137 
354 
47 


Favottc  Gas-Fuel  Co.,  Baily  v.     .     . 

Fell  >:  Knight 

Ferguson  v.  Met.  Gas  Co 

Fitchburg  R.  R.  v.  Gage      .... 

P'leming  v.  Montgomery  Light  Co.  . 

Forsce  v.  Alabama  Great  Southern 

R.  R 


460 


Fuller  V.  Coats 451 


G. 


Gage,  Fitchburg  R.  U.  v 354 

Gardner  v.   Providence    Telephone 

Co 202 

Garrett,  Davis  v.          219 

Gisbourn  v.  Hurst 2 

Gloucester  Water  Co.  v.  Gloucester  .  328 

Goddard,  Cotting  v 316 

Goldsboro  Water  Co.,  Griffin  i-.  .  .  403 
Gold  Stock  &  Telegraph  Co.,  Shep- 

ard  V 52 

Gordon  Hotels,  Ltd.,  Lamond  v.  .     .  23 

Gordon  v.  Hutchinson 3 

Gould  V.  Edison  Illuminating  Co.     .  308 

Grace  v.  Adams 510 

Grand  Trunk,  Hale  f 124 

Grand  Trunk  Rv.,  Wilson  v.   .     .     .  128 

Graves  v.  Lake  Shore,  &c.  R.  R.      .  540 

Grav,  Robins  &  Co.  r 296 

Griffin  v.  Goldsboro  Water  Co.     .     .  403 

Griswold  v.  Webb 171 

Groot,  Farnsworth  r 213 

Gt.  Northern  Ry.,  Steenerson  v.  .     .  333 

Gustin,  Chicago,  &c.  R.  R.  v.   ...  487 

Gwynn  v.  Citizens'  Telephone  Co.  .  48 


H. 


Hale  i:  Grand  Trunk 124 

Hall,  Pope  V 450 

Harbison  v.  Knoxville  Water  Co.     .  470 

Hart  r.  Pennsylvania  R.  R.      ...  536 

Haugen  r.  Albina  L.  &  W.  Co.     .     .  34 

Hays  V.  Pa.  Co 368 

Henry,  Pate  v 19 

Hildebrand,  Owensboro  Gas  Co.  v.   .  464 

Hill,  Denver,  &c.  R.  R.  Co.  r.  ...  292 

Hoosey,  Camden,  &c.  R.  R.  Co.  v.    .  194 

Hoover  v.  Pennsylvania  R.  R.  Co.     .  410 

Housatonic  R.  R.  Co.,  Coupland  v.  .  218 

Houston,  &c.  R.  R.  v.  Trust  Co.  .     .  342 

Hoyt,  Western  Transportation  Co.  r.  287 
Hudson    R.  Telephone   Co.,   Postal 

Telegraph  Co.  v 179 

Hurst,  Gisbourn  v 2 

Hutchinson,  Gordon  v 8 


Illinois,  Munn  v 71 

Ilwaco,  &c.  Co.  r.  Oregon,  &c.  Co.    .  275 

Ingate  v.  Christie 7 

Inglis,  Allnutt  v 70 

International  Bridge  Co.,  Canada  So. 

Ry.Co.  r 315 

Inter-Ocean  Co.  v.  Associated  Press  53 
Interstate    Com.   v.    Alabama,    &c. 

R.R 433 

Interstate  Com.  v.  Baltimore  R.  R.  .  392 
Interstate     Com.,     Cincinnati,     &c. 

K.  R.  r 424 

Interstate  Com.  v.  Detroit,  &c.  R.  R.  431 

Ivens,  Rex  v 21 


TABLE    OF   CASES. 


Jackson  r.  Rogers 1 

Jenks  V.  Coleman 100 

Jones  V.  Newport,  &c.  Co 240 


K. 


Kates  V.  Atlanta  Baggage  &  Cab  Co.  176 

Keith,  Covington  Yards  Co.  v.     .     .  256 

King  V.  Luellin 100 

Knight,  Fell  r 201 

Knoxville  Water  Co.,  Harbison  v.    .  470 


Ladd  V.  Boston 414 

Lake  Shore,  &c.  R.  R.,  Graves  v.      .  540 

Lamond  v.  Gordon  Hotels,  Ltd.    .     .  23 

Lawrence  v.  Pullman  Car  Co!      .     .  139 

Levitt  Lynn,  &c.  R.  R 11 

Little  V.  Dodge  City,  &c.  Ry.  Co.  .  64 
Little  Rock,  &c.  R.  R.  v.  St.  Louis, 

&c.  R.  R 277 

Lockwood,  Railroad  v 498 

London,  &c.  Ry.  Co.,  Phipps  v.    .     .  420 

Long  Is.  R.  R.,  Root  f 377 

Lough  V.  Outer  bridge 380 

Louisville  Gas  Co.  r.  Dulanej'  .  .  306 
Louisville,  &c.  R.  R.,  Butciier's  Yard 

Co.  r 262 

Louisville,  &c.  R.  R.,  Coe  y.     .     .     .  251 

Louisville,  &c.  Ry.  Co.  v.  Snyder    .  193 

Lowry  v.  Tile  Assn 93 

Luellin,  King  v 100 

Lynn,  &c.  R.  R.,  Levi  v 11 


M. 


Manhattan  Gas  Co.,  P.  y 141 

Mann  Boudoir  Co.,  Searles  v.       .     .  199 

Market  St.  Ry.,  Barrett  i-.       ...  297 

Matthews,  Thompson  v 20 

May  hew  v.  Eanies 493 

McDuffee  v.  Portland,  &c.  R.  R.  .     .  140 

McGuire,  W.  U.  Telegraph  Co.  v.    .  463 

Memphis,  &c.  R.  R.  Co.  r.  Benson    .  196 

Memphis,  &c.  R.  R.,  Brown  v.     .     .  116 

Menacho  r.  Ward 372 

Messenger  v.  Penn.  R.  R 357 

Met.  Gas  Co.,  Ferguson  v    .     .     .     .  137 

Milwaukee,  Milwaukee  Ry.  v.      .     .  836 

Milwaukee  Ry.  r.  Milwaukee       .     .  336 

Milwaukee,  &c.  Ry.  Co.,  Pierce  i:    .  126 

Minneapolis,  Wehmann  v 517 

Mobile  V.  Bienville  Water   Supply 

Co '.417 

Mobile,  &c.  R.  U.v.F 230 

Montgomery  Light  Co  ,  Fleming  i'.  47 

Moulton  r.  St.  Paul,  &c.  Ry.    .     .     .  534 

Munn  V.  Illinois 71 

Mutual  Gas  Co.,  Williams  v.    .     .     .  298 

M.  V.  Transp.  Co.,  Bussey  &  Co.  v.  16 

Mynard  v.  Syracuse,  &c.  R.  R.    .     .  503 


N. 


Nantucket  S.  B.  Co.,  Citizens'  Bank  iv 
Nebraska  Telephone  Co.,  Slate  v.    . 
Neel,  W.  U.  Telegraph  Co.  r.       .     . 
New  Braunfels,  Dittmar  v.       ... 

Newport,  &c.  Co  ,  Jones  )• 

New  York,  &c.  R.  R.  Co.,  Potts  v.    . 
No.  Colorado  Irrigation  Co.,  Wheeler 

V 

North  Eastern  Ry.  Co.,  Pounder  v. 
No.  Missouri,  &c.  R.  K.,  Ballentine  v. 
No.  Pacific  R.  R.  v.  Washington 
N.  Y.  Central,  &c.  R.  R.  Co.,  P.  v.  . 
N.  Y.  Central,  &c.  R.  R.  Co.,  Tierney 


Page 

8 
142 
479 
388 
240 
284 

301 
211 
222 
231 

66 

215 


Old  Colony  R.  R.  v.  Tripp  ....  166 

Oregon,  &c.  Co.,  Ilwaco,  &c.  Co.  v.  .  275 

Orne  v.  Barstow 490 

Outerbridge,  Lough  ;• 380 

Owensboro  Gas  Co.  c  Hildebrand  .  464 


Pate  V.  Henry 19 

Pearson  r.  Duane 110 

Peniston  r.  Chicago,  &c.  R.  R.  Co.  .  202 

Pennington  y.  Phila.,  &c.  R.  R.  Co.  .  147 
Penn.  Coal  Co.  v.  Delaware,  &c.  Canal 

Co 446 

Penn.  Co.,  Hays  r .368 

Penn.  Co.,  Toledo  A.  A.  &  N.  M.  Ry. 

Co.  r 59 

Pennsylvania  R.  R.,  Hart  v.     .     .     .  536 

Pennsylvania  R.  R.  Co.,  Hoover  v.  .  410 

Penn.  R.  R.,  Messenger  v .357 

Pennsylvania  R.  R  ,  Reese  v.  .     .     .  456 

Penob.icot  L.  D.  Co.,  Weymouth  v.  27 

P.  V.  Budd 79 

P.  V.  Chicago,  &c.  R.  R 226 

P.,  Chicago,  &c.  Rd.  v 248 

P.  V.  Manhattan  Gas  Co 141 

P.,  Mobile,  &c.  R.  R.  r 230 

P.  V.  N.  Y.  Central,  &c.  R.  R.  Co.     .  56 

Phila.,  &c.  R.  R.  Co.,  Pennington  v.  147 

Phillips  V.  Southern  Ry 489 

Phipps  V.  London,  &c.  Ry.  Co.      .     .  420 

Pierce  v.  Milwaukee,  &c.  Rv.  Co.     .  126 

Pope  V.  Hall "...  450 

Portland  Gas  &  Oil  Co.,  Snyder  l:   .  186 

Portland  Gas  Co.  v.  State   ....  41 

Portland,  &c.  R.  R.,  McDuffee  i\  .  140 
Postal  Telegraph  Co.  v.  Hudson  R. 

Telephone  Co 179 

Potts  V.  New  York,  &c.  R.  R.  Co.     .  284 

Pounder  v.  Northeastern  Ry.  Co.      .  211 

Primrose  '•.  W.  U.  Telegraph  Co.  .  525 
Providence  Telephone  Co.,  Gardner 

V 202 

Pullman  Car  Co.,  Lawrence  v.      .     .  139 


xu 


TABLE  OF  CASES. 


Q. 

Page 
Quiinby  v.  B.  &  M.  R.  R.     .         .     .     506 


R. 


R.  I^.  Commissioners,  So.  Pacific  Co. 

V 322 

Railroad  v.  Lockwood      .     .         .     .  498 

Reese  v.  Pennsylvania  R.  R.    .     .     .  456 

Rex  r.  Ivens ,     •     •  21 

Robins  &  Co.  v.  Gray 296 

Rogers,  Jackson  v 1 

Root  V.  Long  Is.  R.  R 377 


S. 


Sackrider,  Allen  v 5 

Salt  River  Canal  Co.,  Slosser  v.   .     .  37 
Savannah  &  Ogeechee  Canal  Co.  v. 

Sliuman G2 

Searles  r.  Mann  Bondoir  Car  Co.     .  199 

Sears  v.  Eastern  R.  R 483 

Sedalia  Gas  Co.,  Weise  v 465 

Skinner  r.  Upshaw 283 

Shepard  v.  Gold  Stock  &  Telegraph 

Co 52 

Shingleur  r.  Canton 285 

Shuman,  Savannah  &  Ogeechee  Ca- 
nal Co.  r 62 

Silkman  i\  Water  Commissioners     .  303 

Slosser  v.  Salt  River  Canal  Co.    .     .  37 

Smythe  v.  Ames 347 

Snell,  Clinton  Electric  L.  H.  &  P. 

Co.  V 311 

Snyder,  Louisville,  &c.  Ry.  Co.  ;•.     .  193 

Snyder  v.  Portland  Gas  &  Oil  Co.    .  186 

South,  &c.  R.  R.  Co.,  Batton  v.     .     .  208 

Southern  Ry.,  Phillips  r 489 

So.   Pacific    Co.  V.  R.    R.    Commis- 
sioners     322 

Standard    Oil    Co.,    Transportation 

Co.  r 96 

St.  Louis,  &c.  R.  R.,  Little  Rock,  &c. 

R.  R.  r 277 

St.  Paul,  &c.  Ry.  Moulton  v.    .     .     .  5.34 

State  r.  Campbell 145 

State  V.  Cincinnati,  &c.  Ry.  Co.    .     .  400 

State  i\  Nebraska  Teleplione  Co.      .  142 

State,  Portland  Gas  Co.  ?> 41 

State  V.  Steele 118 

Steele,  S.  r 118 

Steenerson  v.  Gt.  Northern  Ry.   .     .  383 

Storser,  Brass  i> 89 

Syracuse,  &c.  R.  R.,  Mynard  v.   .     .  503 


T. 


Taylor,  Weisenger  v 134 

Texas,  &c.  R.  R.  Co.,  Cumberland 

Telephone  Co.  v 416 

Thompson  r.  Matthews 20 

Three   Hundred   and  Eighteen  and 

One-half  Tons  of  Coal  ....  304 
Tierney  i:  N.  Y.  Central,  &c.  R.  R. 

Co.- 215 

Tile  Assn.,  Lovt^ry  r 93 

Toledo,  A.  A.  &  N.  M.  Ry.   Co.   v. 

Penn.  Co 59 

Transportation  Co.  v.  Standard  Oil 

Co 96 

Tripp,  Old  Colony  R.  R.  ;•.      ...  166 

Trust  Co.,  Houston,  &c.  R.  R.  v.  .     .  342 


U. 


Upshaw,  Skinner  v 283 


W. 


Wabash,   &c.   R.   R.,   Chicago,   &c. 

R.  R.  r 189 

Wabash,  &c.  Ry.  Co.,  Coup  v.      .     .  12 

Walker  v.  York,  &c.  Ry 495 

Ward,  Menaclio  r 372 

Washington,  No.  Pacific  R.  R.  v.      .  231 

Watauga  Water  Co.  v.  Wolfe  ...  468 

Water  Commissioners,  Silkman  v.    .  363 

Webb,  Griswold  v 171 

Wehmann  v.  Minneapolis,  &c.  Ry.  .  517 

Weise  v.  Sedalia  Gas  Co 465 

Weisenger  v.  Taylor 134 

Western  Transportation  Co.  v.  Hoyt  287 

W.  U.  Telegraph  Co.,  Brown  v.  .     .  475 

W.  U.  Telegraph  Co.  ?•.  McGuire      .  463 

W.  U.  Telegraph  Co.  r.  Neel  ...  479 

W.  U.  Telegraph  Co.,  Primrose  r.    .  525 

Weymouth  v.  Penobscot  L.  D.  Co.  .  27 
Wheeler  v.  No.  Colorado  Irrigation 

Co 301 

Williams,  Bremner  r 192 

Williams,  Chicago,  &c.  R.  R.  v.   .     .  Ill 

Williams  v.  Mutual  Gas  Co.     .     .     .  298 

Wilson  ?•.  Grand  Trunk  Ry.    ...  128 

Wolfe,  Watauga  Water  Co.  v.      .     .  468 

Wood  ?'.  Consumers'  Gas  Trust  Co.  .  66 

Woods  I'.  Devin 130 


Y. 


York,  &c.  Ry.,  Walker  v 495 


CASES   ON   PUBLIC   SERYICE   COMPANIES. 


CHAPTER   I. 

NATURE   OF   PUBLIC   CALLING. 


ANONYMOUS. 
Common  Pleas,  1441. 

[Y.B.  19  H.  VI.  49,  pi.  5.] 

Writ  of  Trespass  on  the  case  against  one  R.,  a  horse  doctor,  to  the 
effect  that  the  defendant  assumed  to  him  at  London  to  cure  his  horse 
of  a  certain  trouble,  and  that  he  then  so  neghgentl}'  and  carelesslj-  gave 
the  medicines,  etc.,  that  the  horse,  etc.  .  .  . 

Paston,  J.  You  have  not  shown  that  he  is  common  surgeon  to 
cure  such  horses,  and,  therefore,  although  he  has  killed  your  horse 
by  his  medicines  you  shall  have  no  action  against  him  without  an 
assumpsit. 


ANONYMOUS. 

King's   Bench,  1450. 

[Keilway,  50,  pi.  4.] 

Note,  That  it  was  agreed  by  the  court,  that  where  a  smith  declines  to 
shoe  my  horse,  or  an  innkeeper  refuses  to  give  me  entertainment  at  his 
inn,  I  shall  have  an  action  on  the  case,  notwithstanding  no  act  is  done  ; 
for  it  does  not  sound  in  covenant.  .  .  .  Note,  That  in  this  case  a  man 
shall  have  no  action  against  innkeeper,  but  shall  make  complaint  to  the 
ruler,  by  5  Ed.  IV.  2  ;  contra,  14  Hen.  VII.  22. 


JACKSON  V.  ROGERS. 
King's  Bench,  1683. 

[2  Shower,  327.] 

Action  on  the  case,  for  that  whereas  defendant  is  a  common  carrier 
from  London  to  Lymmington  et  abinde  retrorsum,  and  setting  it  forth 


2  GISBOURN   V.   HURST. 

as  the  custom  of  England,  that  he  is  bound  to  carry  goods,  and  that 
the  plaintiff  brought  him  such  a  pack,  he  refused  to  carry  them,  though 
offered  his  hire. 

And  held  b}-  Jefferies,  C.  J.,  that  the  action  is  maintainable,  as  well 
as  it  is  against  an  innkeeper  for  refusing  a  guest,  or  a  smith  on  the 
road  who  refuses  to  shoe  mj  horse,  being  tendered  satisfaction  for  the 
same. 

Note,  That  it  was  alleged  and  proved  that  he  had  convenience  to 
carry  the  same;    and  the  plaintiff  had  a  verdict. 


GISBOURN  V.  HURST. 
Common  Bench,   1710. 

[1  Salk.  249.] 

In  trover  upon  a  special  vei-dict  the  case  was,  the  goods  in  the  decla- 
ration were  the  plaintiff's,  and  by  him  delivered  in  London  to  one  Rich- 
ardson, to  carry  down  to  Birmingham.  This  Richardson  was  not  a 
common  carrier,  but  for  some  small  time  last  past  brought  cheese  to 
London,  and  in  his  return  took  such  goods  as  he  could  carrj-  back  in 
his  wagon  into  the  country  for  a  reasonable  price.  When  he  returned 
home,  he  put  his  wagon  with  the  cheese  into  the  barn,  where  it  con- 
tinued two  nights  and  a  day,  and  then  the  landlord  came  and  distrained 
the  cheese  for  rent  due  for  the  house,  which  was  not  an  inn,  but  a  pri- 
vate house;  and  it  was  agreed 7>er  Cur.,  that  goods  delivered  to  any 
person  exercising  a  public  trade  or  employment  to  be  carried,  wrought 
or  managed  in  the  way  of  his  trade  or  employ,  are  for  that  time  under 
a  legal  protection,  and  privileged  from  distress  for  rent ;  but  this 
being  a  private  undertaking  required  a  farther  consideration,  and  it 
was  resolved,  that  any  man  undertaking  for  hire  to  carry  the  goods  of 
all  persons  indifferently,  as  in  this  case,  is,  as  to  this  privilege,  a  com- 
mon carrier ;  for  the  law  has  given  the  privilege  in  respect  of  the 
trader,  and  not  in  respect  of  the  carrier,  and  the  case  in  Cro.  El.  596 
is  stronger.  Two  tradesmen  brought  their  wool  to  a  neighbor's  beam, 
which  he  kept  for  his  private  use,  and  it  was  held  that  could  not  be 
distrained.^ 

1  Vide  Francis  v.  Wyatt,  3  Bur.  1489,  1  Bl.  483,  in  which  it  was  determined,  that 
a  carriage  standing  at  livery  is  not  exempt  from  distress.  In  the  former  report  the 
general  doctrine  upon  the  subject  is  very  fully  discussed. 


GORDON   V.    HUTCHINSON. 


GORDON   V.  HUTCHINSON. 
Supreme   Court  of  Pennsylvania,   184L 

[1    W.  Sr  S.  285.] 

Error  to  the  Common  Pleas  of  Centre  Count}-. 

This  was  an  action  on  the  case  by  James  B.  Hutchinson  against 
James  Gordon.     The  defendant  pleaded  non  assumpsit. 

The  facts  were  that  the  defendant,  being  a  farmer,  applied  at  the 
store  of  the  plaintiff  for  the  hauling  of  goods  from  Lewistown  to  Belle- 
fonte,  upon  his  return  from  the  former  place,  where  he  was  going  with 
a  load  of  iron.  He  received  an  order  and  loaded  the  goods.  On  the 
way  the  head  came  out  of  a  hogshead  of  molasses,  and  it  was  wholly 
lost.  In  this  action  the  plaintiff  claimed  to  recover  the  price  of  it. 
There  was  much  proof  on  the  subject  of  the  occasion  of  the  loss  : 
whether  it  was  in  consequence  of  expansion  of  the  molasses  from  heat, 
or  of  negligence  on  the  part  of  the  wagoner,  of  which  there  was  strong 
evidence. 

The  defendant  took  the  ground  that  he  was  not  subject  to  the  re* 
sponsibilities  of  a  common  carrier,  but  only  answerable  for  negligence, 
inasmuch  as  he  was  only  employed  occasionally  to  carry  for  hire.  But 
the  court  below  (Woodward,  President)  instructed  the  jur}-,  that  the 
defendant  was  answerable  upon  the  principles  which  govern  the  liabili- 
ties of  a  common  carrier. 

Blanchard,  for  plaintiff  in  error,  argued  the  same  point  here,  and 
cited  in  support  of  it  2  Kent's  Com.  597  ;  Story  on  Bail.  298;  2  Lord 
Raym.  909 ;  2' Marsh,  293  ;  Jones  on  Bail.  306  ;  5  Rawle,  188  ;  1  AVend. 
272;  Leigh  N.  P.  507;  2  Salk.  249;  2  Bos.  &  Pul.  417;  4  Taunt. 
787. 

Hale,  for  defendant  in  error,  cited  4  N.  H.  306;  Bui.  N.  P.  7; 
1  Salk.  282  ;  1  AVils.  281;  Story  on  Bail.  325  ;  2  Watts,  443. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J.  The  best  definition  of  a  common  carrier  in  its  appli- 
cation to  the  business  of  tiiis  country,  is  that  which  Mr.  Jeremy  (Law 
of  Carriers,  4)  has  taken  from  Gisbourn  v.  Hurst,  1  Salk.  249,  which 
was  the  case  of  one  who  was  at  first  not  thought  to  be  a  common  car- 
rier only  because  he  had,  for  some  small  time  before,  brought  cheese 
to  London,  and  taken  such  goods  as  he  could  get  to  carry  back  into 
the  country  at  a  reasonable  price  ;  but  the  goods  having  been  dis- 
trained for  the  rent  of  a  barn  into  which  he  had  put  his  wagon  for  safe 
keeping,  it  was  finally  resolved  that  any  man  undertaking  to  carry  the 
goods  of  all  persons  indifferently,  is,  as  to  exemption  from  distress,  a 
common  cai-rier.  Mr.  Justice  Story  has  cited  this  case  (Commentaries 
on  Bailm.  322)  to  prove  that  a  common  carrier  is  one  who  holds  him- 
self out  as  ready  to  engage  in  the  transportation  of  goods  for  hire  as  a 
business,  and  not  as  a  casual  occupation  ^ro  hac  vice.     My  conclusiou 


4  GORDON    V.    HCTTCIIINSON. 

from  it  is  different.  I  take  it  a  wagoner  who  carries  goods  for  hire  is  a 
common  carrier,  whether  transportation  be  his  principal  and  direct 
business,  or  an  occasional  and  incidental  employment.  It  is  true  tlie 
court  went  no  further  than  to  say  the  wagoner  was  a  common  carrier 
as  to  the  privilege  of  exemption  from  distress  ;  but  his  contract  was 
held  not  to  be  a  private  undertaking  as  the  court  was  at  first  inclined 
to  consider  it,  but  a  public  engagement,  by  reason  of  his  readiness  to 
carry  for  an}-  one  who  would  cmplo}-  him,  without  regard  to  his  other 
avocations,  and  he  would  consequently  not  only  be  entitled  to  the  privi- 
leges, but  be  subject  to  the  responsibilities  of  a  common  carrier :  in- 
deed they  are  correlative,  and  there  is  no  reason  why  he  should  enjoy 
the  one  without  being  burdened  with  the  other.  Chancellor  Kent 
(2  Commentaries,  597)  states  the  law  on  the  authority  of  Robinson  v. 
Dunmore,  2  Bos.  &  Pul.  416,  to  be  that  a  carrier  for  hire  in  a  particu- 
lar case,  not  exercising  the  business  of  a  common  carrier,  is  answerable 
only  for  ordinary  neglect,  unless  he  assume  the  risk  of  a  common  car- 
rier by  express  contract;  and  Mr.  Justice  Story  (Com.  on  Bail.  298)  as 
well  as  the  learned  annotator  on  Sir  William  Jones's  Essay  (Law  of 
Bailm.  103  d^  note  3)  does  the  same  on  the  authorit}'  of  the  same  case. 
There,  however,  the  defendant  was  held  liable  on  a  special  contract  of 
warranty,  that  the  goods  should  go  safe  ;  and  it  was  therefore  not  ma- 
terial whether  he  was  a  general  carrier  or  not.  The  judges,  indeed, 
said  that  he  was  not  a  common  carrier,  but  one  who  had  put  himself 
in  the  case  of  a  common  carrier  by  his  agreement ;  yet  even  a  common 
carrier  may  restrict  his  responsibility  b}-  a  special  acceptance  of  the 
goods,  and  may  also  make  himself  answerable  by  a  special  agreement 
as  well  as  on  the  custom.  The  question  of  carrier  or  not.  therefore, 
did  not  necessarily  enter  into  the  inquiry,  and  we  cannot  suppose  the 
judges  gave  it  their  principal  attention. 

But  rules  which  have  received  their  form  from  the  business  of  a  peo- 
ple whose  occupations  are  definite,  regular,  and  fixed,  must  be  applied 
with  much  caution  and  no  little  qualification  to  the  business  of  a  peo- 
ple whose  occupations  are  vague,  desultory,  and  irregular.  In  Eng- 
land, one  who  holds  himself  out  as  a  general  carrier  is  bound  to  take 
employment  at  the  current  price  ;  but  it  will  not  be  thought  that  he  is 
bound  to  do  so  here.  Nothing  was  more  common  formerl}-,  than  for 
the  wagoners  to  lie  by  in  Philadelphia  for  a  rise  of  wages.  In  Eng- 
land the  obligation  to  cany  at  request  upon  the  carrier's  particular 
route,  is  the  criterion  of  the  profession,  but  it  is  certainly-  not  so  with 
us.  In  Pennsylvania,  we  had  no  carriers  exclusively  between  particu- 
lar places,  before  the  establishment  of  our  public  lines  of  transporta- 
tion ;  and  according  to  the  English  principle  we  could  have  had  no 
common  carriers,  for  it  was  not  pretended  that  a  wagoner  could  be 
compelled  to  load  for  an}'  part  of  the  continent.  But  the  polic}'  of 
holding  him  answeral)le  as  an  insurer  was  more  obviously  dictated  by  the 
solitary  and  mountainous  regions  througli  which  his  course  for  the  most 
part  lay,  than  it  is  by  the  frequented  thoroughfares  of  England.     But  the 


ALLEN   V.    SACKKIDEE.  5 

Pennsylvania  wagoner  was  not  always  such  even  by  profession.  No 
inconsiderable  part  of  the  transportation  was  done  by  tlie  farmers  of 
the  interior,  who  took  their  produce  to  Philadelphia,  and  procured  re- 
turn loads  for  the  retail  merchants  of  the  neighboring  towns;  and 
many  of  them  passed  by  tlieir  homes  with  loads  to  Pittsburg  or  Wheel- 
ing, the  principal  points  of  embarkation  on  the  Ohio.  But  no  one  sup- 
posed they  were  not  responsible  as  common  carriers  ;  and  they  always 
compensated  losses  as  such.  They  presented  themselves  as  applicants 
for  employment  to  those  who- could  give  it ;  and  were  not  distinguish- 
able in  their  appearance,  or  in  the  equipment  of  their  teams  from 
carriers  b}'  profession.  I  can  readily  understand  wh}'  a  carpenter,  en- 
couraged by  an  employer  to  undertake  the  job  of  a  cabinetmaker,  shall 
not  be  bound  to  bring  the  skill  of  a  workman  to  the  execution  of  it ;  or 
why  a  farmer,  taking  his  horses  from  the  plough  to  turn  teamster  at  the 
solicitation  of  his  neighbor,  shall  be  answerable  for  nothing  less  than 
good  faith  ;  but  I  am  unable  to  understand  why  a  wagoner  soliciting 
the  employment  of  a  common  carrier,  shall  be  prevented  bv  the  nature 
of  an}'  other  employment  he  may  sometimes  follow^  from  contracting 
the  responsibility  of  one.  What  has  a  merchant  to  do  with  the  private 
business  of  those  who  publicl}'  solicit  employment  from  him?  They 
offer  themselves  to  him  as  competent  to  i)erform  the  service  required, 
and  in  the  absence  of  express  reservation,  the}'  contract  to  perform  it 
on  the  usual  terms,  and  under  the  usual  responsibilit}'.  Now,  what  is 
the  case  here?  The  defendant  is  a  farmer,  but  has  occasionally  done 
jobs  as  a  carrier.  That,  however,  is  immaterial.  He  applied  for  the 
transportation  of  these  goods  as  a  matter  of  business,  and  consequently 
on  the  usual  conditions.  His  agenc}'  was  not  sought  in  consequence 
of  a  special  confidence  reposed  in  him  —  there  was  nothing  special  in 
the  case  —  on  the  contrary',  the  employment  was  sought  by  himself, 
and  there  is  nothing  to  show  that  it  was  given  on  terms  of  diminished 
responsibility.  There  was  evidence  of  negligence  before  the  jur}' ; 
but  independent  of  that,  we  are  of  opinion  that  he  is  liable  as  an 
insurer.  Judgment  affirmed} 


ALLEN  V.  SACKRTDER. 
Court  of  Appeals,  New  York,  1867. 

[37  N.  Y.  341.] 

Parker,  J.  The  action  was  brought  against  the  defendants  to 
charge  them,  as  common  carriers,  with  damage  to  a  quantity  of  giain 
shipped  by  the  plaintiffs  in  the  sloop  of  the  defendants,  to  be  trans- 

1  Compare:  Fishy.  Chapman,  2  Ga.  349;  Parmalee  v.  Lourtz,  74  111.  116;  Robert- 
sou  V.  Kennedy,  2  Dana,  430 ;  Hanisou  v.  Roy,  39  Miss.  396  ;  Sanners  v.  Stewart,  20 
Oh.  St  69;  Chevallier  v.  Straham,  2  Tex.  115. —  Ed. 


6  ALLEN    V.   SACKEIDER. 

ported  from  Trenton,  in  the  province  of  Canada,  to  Ogdensburgh,  in 
this  State,  which  accrued  from  the  wetting  of  the  grain  in  a  storm. 

The  case  was  referred  to  a  referee,  who  found  as  follows:  "The 
I)Iaintiffs,  in  the  fall  of  1859,  were  partners,  doing  business  at  Ogdens- 
burgh. The  defendants  were  the  owners  of  the  sloop  "  Creole,"  of  which 
Farnham  was  master.  In  the  fall  of  1859  the  plaintiffs  applied  to  the 
defendants  to  bring  a  load  of  grain  from  the  bay  of  Quinte  to  Ogdens- 
burgh. The  master  stated  that  he  was  a  stranger  to  the  bay,  and  did 
not  know  whether  his  sloop  had  capacity  to  go  there.  Being  assured 
by  the  plaintiffs  that  she  had,  he  engaged  for  the  trip  at  three  cents  per 
bushel,  and  performed  it  with  safety.  In  November,  1859,  plaintiffs 
again  applied  to  defendants  to  make  another  similar  trip  for  grain,  and 
it  was  agreed  at  one  hundred  dollars  for  the  trip.  The  vessel  pro- 
ceeded to  the  ba}',  took  in  a  load  of  grain,  and  on  her  return  was 
driven  on  shore,  and  the  cargo  injured  to  the  amount  of  $1,346.34; 
that  the  injury  did  not  result  from  the  want  of  ordinary  care,  skill,  or 
foresight,  nor  was  it  the  result  of  inevitable  accident,  or  what,  in  law, 
is  termed  the  act  of  God.  From  these  facts,  my  conclusions  of  law 
are,  that  the  defendants  were  special  carriers,  and  only  liable  as  such, 
and  not  as  common  carriers,  and  that  the  proof  does  not  establish  such 
facts  as  would  make  the  defendants  liable  as  special  carriers;  and, 
therefore,  the  plaintiffs  have  no  cause  of  action  against  them." 

The  only  question  in  the  case  is,  were  the  defendants  common  car- 
riers? The  facts  found  by  the  referee  do  not,  I  think,  make  the  defend- 
ants common  carriers.  They  owned  a  sloop;  but  it  does  not  appear 
that  it  was  ever  offered  to  the  public  or  to  individuals  for  use,  or  ever 
put  to  any  use,  except  in  the  two  trips  which  it  made  for  tlie  plaintiffs, 
at  their  special  request.  Nor  does  it  appear  that  the  defendants  were 
engaged  in  the  business  of  carrying  goods,  or  that  they  held  themselves 
out  to  the  world  as  carriers,  or  had  ever  offered  their  services  as  such. 
This  casual  use  of  their  sloop  in  transporting  plaintiffs'  propert}-  falls 
short  of  proof  sufficient  to  show  them  common  carriers. 

A  common  carrier  was  defined,  in  Gisbourn  lu  Hurst,  1  Salk.  249,  to 
be,  "any  man  undertaking,  for  hire,  to  carry  the  goods  of  all  persons 
indifferently;"  and  in  Dwight  v.  Brewster,  1  Pick.  50,  to  be,  "one  who 
undertakes,  for  hire,  to  transport  the  goods  of  such  as  choose  to  emi)loy 
him,  from  place  to  place."  In  Orange  Bank  v.  Brown,  3  Wend.  161, 
Chief  Justice  Savage  said:  "  Ever}-  person  who  undertakes  to  carr}-, 
for  a  compensation,  the  goods  of  all  persons  indifferently,  is,  as  to  the 
liabilit}'  imposed,  to  be  considered  a  common  carrier.  The  distinction 
between  a  common  carrier  and  a  private  or  special  carrier  is,  that  the 
former  holds  himself  out  in  common,  that  is,  to  all  persons  who  choose 
to  emplo}'  him,  as  ready  to  carr}'  for  hire ;  while  the  latter  agrees,  in 
some  special  case,  with  some  private  individual,  to  carry  for  hire." 
(Storj-  on  Contracts,  §  752,  or.)  The  employment  of  a  common  carrier 
is  a  public  one,  and  he  assumes  a  public  duty,  and  is  bound  to  receive 
and  carry  the  goods  of  any  one  who  offers.     "On  the  whole,"  says 


INGATE    V.    CIIitlSTIE.  7 

Prof.  Parsons,  "it  seems  to  be  clear  that  no  one  can  be  considered  as 
a  common  carrier,  unless  lie  has,  in  some  wa}',  held  himself  out  to 
the  public  as  a  carrier,  in  such  manner  as  to  render  him  liable  to  an 
action  if  he  should  refuse  to  carry  for  any  one  who  wished  to  employ 
hiin."     (2  Pars,  on  Cont.  [5th  ed.]  166,  note.) 

The  learned  counsel  for  the  appellant  in  effect  recognizes  the  necessity 
of  the  carrier  holding  himself  out  to  the  world  as  such,  in  order  to  in- 
vest him  with  the  character  and  responsibilities  of  a  common  carrier ; 
and,  to  meet  that  necessity,  says  :  "The  'Creole'  was  a  freight  vessel, 
rigged  and  manned  suitably  for  carrying  freight  from  port  to  port ;  her 
appearance  in  the  harbor  of  Ogdensburgh,  waiting  for  business,  was  an 
emphatic  advertisement  that  she  sought  employment."  These  facts  do 
not  appear  in  the  findings  of  the  referee,  and,  therefore,  cannot,  if  they 
existed,  help  the  appellants  upon  this  appeal. 

It  is  not  claimed  that  the  defendants  are  liable,  unless  as  common 
carriers.  Very  clearl}',  they  were  not  common  carriers  ;  and  the  judg- 
ment should,  therefore,  be  affirmed. 

All  the  judges  concurring.  Judgment  affirmed-^ 


INGATE  V.  CHRISTIE. 
Queen's  Bench,   1850. 

[3   Car.  Sr  K.  &\.] 

Assumpsit.  The  declaration  stated,  that  the  defendant  agreed  to 
carr}'  100  cases  of  figs  from  a  wharf  to  a  ship,  and  that  by  the  negli- 
gence of  the  defendant's  servants  the  figs  were  lost.  Plea :  non 
assumpsit. 

It  was  proved  that,  on  the  14th  of  February,  1850,  the  defendant 
was  employed  by  the  plaintiffs,  who  are  merchants,  to  take  100  cases 
of  figs  in  his  lighter  from  Mills'  Wharf,  in  Thames  Street,  to  the  "  Mag- 
net "  steamer,  which  lay  in  the  River  Thames,  and  that  as  the  figs  were 
on  board  the  lighter,  which  was  proceeding  with  them  to  the  "  Mag- 
net," the  lighter  was  run  down  by  the  "  Menai"  steamer  and  the  figs 
all  lost.  It  was  proved  that  the  defendant  had  a  counting-house  with 
his  name  and  the  word  "lighterman"  on  the  doorposts  of  it,  and  that 
he  carried  goods  in  his  lighters  from  the  wharves  to  the  ships  for  anj-- 
body  who  emplo^'ed  him,  and  that  the  defendant  was  a  lightermati  and 
not  a  wharfinger, 

Aldekson,  B.  Everybody  who  undertakes  to  carry  for  any  one  who 
asks  him,  is  a  common  carrier.  The  criterion  is,  whether  he  carries 
for  particular  persons  only,  or  whether  he  carries  for  every  one.    If  a 

1  Compare:  Bell  v.  Pidgeon,  5  Fed.  634;  Crosby  v.  Fitch,  12  Conn.  410;  Fish  v. 
Clark,  49  N.  Y.  122;  Pennewell  v.  Cuilen,  5  Harr.  238;  Moss  v.  Bettes,  4  Heisk.  661 ; 
Spencer  v.  Daggett,  2  Vt.  92.  —  Ed. 


8  citizens'   bank    v.    NANTUCKET   STEAMBOAT   CO. 

man  holds  himself  out  to  do  it  for  every  one  who  asks  him,  he  is  a  com- 
mon carrier ;  but  if  he  does  not  do  it  for  ever}-  one,  but  carries  for  you 
and  me  only,  that  is  matter  of  special  contract.  Here  we  have  a  per- 
son with  a  counting-house,  "  lighterman  "  painted  at  his  door,  and  he 
offers  to  carr}'  for  every  one.^ 


CITIZENS'  BANK  u.  NANTUCKET  STEAMBOAT  CO. 
Circuit  Court  of  the  United  States,   1811. 

[2  Story,  16.2] 

Story,  J.  Tliis  cause  has  come  before  the  court  under  circumstances, 
involving  some  points  of  the  hrst  impression  here,  if  not  of  entire  nov- 
elty ;  and  it  has  been  elaborately  argued  by  the  counsel  on  each  side  on 
all  the  matters  of  law,  as  well  as  of  fact,  involved  in  the  controversy. 
I  have  given  them  all  the  attention,  both  at  the  argument  and  since, 
which  their  importance  has  demanded,  and  shall  now  proceed  to  deliver 
my  own  judgment. 

The  suit  is  in  substance  brought  to  recover  from  the  Steamboat  Com- 
pany a  sum  of  money,  in  bank  bills  and  accounts,  belonging  to  the 
Citizens'  Bank,  whicli  was  intrusted  by  the  cashier  of  the  bank  to  the 
niaster  of  the  steamboat,  to  be  carried  in  the  steamboat  from  tlie  Island 
of  Nantucket  to  the  port  of  New  Bedford,  across  the  intermediate  sea, 
which  monc}'  has  been  lost,  and  never  duly  delivered  by  the  master. 
Tlie  [)lace  where,  and  the  circumstances  under  which  it  was  lost,  do  not 
appear  distinctly  in  the  evidence  ;  and  are  no  otherwise  ascertained, 
than  b}-  the  statement  of  the  master,  who  has  alleged  that  the  money 
was  lost  b}'  him  after  his  arrival  at  New  Bedford,  or  was  stolon  from 
him;  but  exactly  how  and  at  what  time  he  does  not  know.  The  libel 
is  not  in  rem^  hut  in  personam,  against  the  Steamboat  Company  alone; 
and  no  question  is  made  (and  in  my  judgment  there  is  no  just  ground 
for  an}-  such  question),  that  the  cause  is  a  case  of  admiralty  and  mari- 
time jurisdiction  in  the  sense  of  the  Constitution  of  the  United  States, 
of  which  the  District  Court  had  full  jurisdiction  ;  and,  therefore,  it  is 
properl}-  to  be  entertained  by  this  court  upon  the  appeal. 

There  are  some  preliminary  considerations  suggested  at  the  argu- 
ment, wliich  it  mav  be  well  to  dispose  of,  before  we  consider  those, 
which  constitute  the  main  points  of  the  controversy.  In  the  first  place, 
there  is  no  manner  of  doubt,  that  steamboats,  like  other  vessels,  ma}' 
be  employed  as  common  carriers,  and  when  so  employed  their  owners 
are  liable  for  all  losses  and  damages  to  goods  and  other  property  in- 

1  Compare:    East  India  Co.  v.  Pullen,  2  Strange,  690;    Brind  v.  Dale,  8  C.  &  P. 
207  ;  Liver  Alkali  Co.  r.  Johnson,  L.  K.  9  Ex.  338.  — Ed. 
^  This  case  is  abridged.  —  Eu. 


CITIZENS     BANK    V.    NANTUCKET   STEAMBOAT    CO.  9 

trusted  to  them  as  common  carriers  to  the  same  extent  and  in  the  same 
manner,  as  any  other  common  carriers  by  sea.  But  whether  they  are 
so,  depends  entirely  upon  the  nature  and  extent  of  the  employment  of 
the  steamboat,  either  express  or  implied,  which  is  authorized  by  the 
owners.  A  steamboat  may  be  employed,  although  I  presume  it  is 
rarel}'  the  case,  solely-  in  the  transportation  of  passengers  ;  and  then 
the  liability  is  incurred  only  to  the  extent  of  the  common  rights,  duties, 
and  obligations  of  carrier  vessels  of  passengers  by  sea,  and  carrier 
vehicles  of  passengers  on  land ;  or  they  may  be  employed  solely  in  the 
transportation  of  goods  and  merchandise,  and  then,  lilce  otlier  carriers 
of  the  like  character  at  sea  and  on  land,  the}'  are  bound  to  the  common 
duties,  obligations,  and  liabilities  of  common  carriers.  Or  the  employ- 
ment may  be  limited  to  the  mere  carriage  of  particular  kinds  of  prop- 
erty and  goods  ;  and  when  this  is  so,  and  the  fact  is  known  and  avowed, 
the  owners  will  not  be  liable  as  common  carriers  for  any  other  goods  or 
property  intrusted  to  their  agents  without  tlieir  consent.  The  trans- 
portation of  passengers  or  of  merchandise,  or  of  both,  does  not  neces- 
sarily impl}-,  that  the  owners  hold  themselves  out  as  common  carriers 
of  money  or  bank  bills.  It  has  never  been  imagined,  I  presume,  that 
the  owners  of  a  ferry  boat,  whose  ordintay  employment  is  merel}^  to 
carry  passengers  and  their  luggage,  would  be  liable  for  the  loss  of 
money  intrusted  for  carriage  to  the  boatmen  or  other  servants  of  the 
owners,  where  the  latter  had  no  knowledge  thereof,  and  received  no 
compensation  therefor.  lu  like  manner  the  owners  of  stage-coaches, 
whose  ordinary  employment  is  limited  to  the  transportation  of  pas- 
sengers and  their  luggage,  would  not  be  liable  for  parcels  of  goods  or 
merchandise  intrusted  to  the  drivers  employed  by  them,  to  be  carried 
from  one  place  to  another  on  their  route,  where  the  owners  receive  no 
compensation  therefor,  and  did  not  hold  themselves  out  as  common 
carriers  of  such  parcels.  A  fortiori,  they  would  not  be  liable  for  the 
carriage  of  parcels  of  money,  or  bank  bills,  under  the  like  circumstances. 
So,  if  money  should  be  intrusted  to  a  common  wagoner  not  authorized 
to  receive  it  by  the  ordinary  business  of  his  employers  and  owners,  at 
their  risk,  I  apprehend,  that  the}'  would  not  be  liable  for  the  loss 
thereof  as  common  carriers,  any  more  than  they  would  be  for  an  injury 
done  by  his  negligence,  to  a  passenger,  whom  he  had  casually  taken  up 
on  the  road.  In  all  these  cases,  the  nature  and  extent  of  the  employ- 
ment or  business,  whicli  is  authorized  by  the  owners  on  their  own 
account  and  at  their  own  risk,  and  which  either  expressh'  or  impliedl}' 
the}'  hold  themselves  out  as  undertaking,  furnishes  the  true  limits  of 
their  rights,  obligations,  duties,  and  liabilities.  Tiie  question,  therefore, 
in  all  cases  of  this  sort  is,  what  are  the  true  nature  and  extent  of  the 
employment  and  business,  in  whicli  the  owners  hold  themselves  out  to 
the  public  as  engaged.  The\'  may  undertake  to  be  common  carriers  of 
passengers,  and  of  goods  and  merchandise,  and  of  money  ;  or,  they 
may  limit  their  employment  and  business  to  the  carriage  of  any  one  or 
more  of  these  particular  matters.     Our  steamboats  are  ordinarily  em- 


10  citizens'    bank    v.    NANTUCKET   STEAMBOAT    CO. 

ployed,  I  believe,  in  the  carriage,  not  merely  of  passengers,  but  of  goods 
and  merchandise,  including  specie,  on  freight ;  and  in  sucii  cases  the 
owners  will  incur  the  liabilities  of  common  carriers  as  to  all  such  mat- 
ters within  the  scope  of  their  employment  and  business.  But  in  respect 
to  the  carriage  of  bank  bills,  perhaps  very  different  usages  do,  or  at 
least  ma}-,  prevail  in  different  routes,  and  different  ports.  But,  at  all 
events,  1  do  not  see,  how  the  court  can  judicially  say,  that  steamboat 
owners  are  either  necessarily  or  ordinarily  to  be  deemed,  in  all  cases, 
common  carriers,  not  onl}'  of  passengers,  but  of  goods  and  merchandise 
and  money  on  the  usual  voyages  and  routes  of  tlieir  steamboats  ;  but 
the  nature  and  extent  of  the  employment  and  business  thereof  must  be 
established  as  a  matter  of  fact  by  suitable  proofs  in  each  particular 
case.  Such  proofs  have,  therefore,  been  very  properly  resorted  to  upon 
the  present  occasion. 

In  the  next  place,  I  take  it  to  be  exceeding!}-  clear,  that  no  person  is 
a  common  carrier  in  the  sense  of  the  law,  who  is  not  a  carrier  for  hire ; 
that  is,  who  does  not  receive,  or  is  not  entitled  to  receive,  an}-  recom- 
pense for  his  services.  The  known  definition  of  a  common  carrier,  in 
all  our  books,  fully  establishes  this  result.  If  no  hire  or  recompense  is 
payable  ex  debito  justitice,  but  something  is  bestowed  as  a  mere  gra- 
tuity or  voluntary  gift,  then,  although  the  party  may  transport  either 
persons  or  property,  he  is  not  in  the  sense  of  the  law  a  common  car- 
rier; but  he  is  a  mere  mandatary,  or  gratuitous  bailee;  and  of  course 
his  rights,  duties,  and  liabilities  are  of  a  very  different  nature  and  char- 
acter from  those  of  a  common  earlier.  In  the  present  case,  therefore, 
it  is  a  very  important  inquiry,  whether  in  point  of  fact  the  respondents 
were  carriers  of  money  and  bank  notes  and  checks  for  hire  or  recom- 
pense, or  not.  I  agree,  that  it  is  not  necessary,  that  the  compensation 
should  be  a  fixed  sum,  or  known  as  freight;  for  it  will  be  sufficient  if 
a  hire  or  recompense  is  to  be  paid  for  the  service,  in  the  nature  of  a 
quantum  meruit,  to  or  for  the  benefit  of  the  company.  And  I  farther 
agree,  that  it  is  b}-  no  means  necessary,  that  if  a  hire  or  freight  is  to  be 
paid,  the  goods  or  merchandise  or  money  or  other  property  shoidd  be 
entered  upon  any  freight  list,  or  the  contract  be  verified  b}-  any  writ- 
ten memorandum.  But  the  existence  or  non-existence  of  such  circum- 
stances may  nevertheless  be  very  important  ingredients  in  ascertaining 
what  the  true  understanding  of  the  parties  is,  as  to  the  character  of 
the  bailment. 

In  the  next  place,  if  it  should  turn  out,  that  the  Steamboat  Company 
are  not  to  be  deemed  common  carriers  of  money  and  bank  bills  ;  still, 
if  the  master  was  authorized  to  receive  money  and  bank  bills  as  their 
agent,  to  be  transported  from  one  port  of  the  route  of  the  steamboat 
to  another  at  their  risk,  as  gratuitous  bailees,  or  mandataries,  and  he 
has  been  guilty  of  gross  negligence  in  the  performance  of  his  duty, 
whereby  the  money  or  bank  bills  have  been  lost,  the  company  are  un- 
doubtedly liable  therefor,  unless  such  transportation  be  beyond  the 
scope  of  their  charter;  upon  the  plain  gi'ound,  that  they  are  responsible 


LEVI    V.    LYNN    AND    BOSTON    KAILROAD   CO.  11 

for  the  gross  negligence  of  their  agents  within  the  scope  of  their  em- 
ploj'raent. 

[Having  stated  these  preUminary  doctrines,  which  seem  necessary 
to  a  ju«t  understanding  of  the  case,  we  may  now  proceed  to  a  direct 
consideration  of  the  merits  of  the  present  controversy.  And  in  my 
jiulgment,  although  there  are  several  principles  of  law  involved  in 
it,  yet  it  mainly  turns  upon  a  matter  of  fact,  namely,  the  Steamlioat 
Company  were  not,  nor  held  themselves  out  to  the  public  to  be,  common 
carriers  of  money  and  bank  bills,  as  well  as  of  passengers  and  goods 
and  merchandises,  in  the  strict  sense  of  the  latter  terms ;  the  em- 
ploj'ment  of  the  steamboat  was,  so  far  as  the  company  are  concerned, 
limited  to  the  mere  transportation  of  passengers  and  goods  and  mer- 
chandises on  freight  or  for  hire  ;  and  mone}'  and  bank  bills,  although 
known  to  the  company  to  be  carried  by  the  master,  were  treated  by 
them,  as  a  mere  personal  trust  in  the  master  by  the  owners  of  the 
money  and  bank  bills,  as  their  private  agent,  and  for  which  the  com- 
pau}'  never  held  themselves  out  to  the  public  as  responsible,  or  as  being 
within  the  scope  of  their  employment  aud  business  as  carriers.  .   .  . 

Judgment  for  defendant}'\ 


LEVI   V.  LYNN   AND  BOSTON   RAILROAD    CO. 
Supreme  Court  of  Massachusetts,  1865. 

[1 1  Allen,  300.2] 

Tort  against  a  street  railwaj-  corporation  to  recover  the  value  of  a 
box  of  merchandise. 

At  the  trial  in  the  Superior  Court,  before  Bkigham,  J.,  the  plaintiff 
introduced  evidence  tending  to  show  that  on  the  8th  of  July,  1864,  slie 
placed  upon  the  front  platform  of  one  of  the  defendants'  cars  in  Boston 
a  box  of  merchandise,  aud  then  took  her  seat  within  the  car  to  go  to 
Chelsea,  and  paid  the  conductor  her  fare  and  also  a  certain  sum  as 
compensation  for  carrying  the  box  to  Chelsea.  She  was  also  allowed 
to  introduce  evidence,  under  objection,  tending  to  show  that  two  other 
persons  had  at  other  times  paid  to  conductors  of  the  defendants'  cars 
mone}'  for  the  conveyance  of  merchandise  to  Chelsea  in  addition  to  their 
own  fare,  with  the  knowledge  of  the  superintendent  of  the  railroad. 

The  above  are  all  the  facts  recited  in  the  bill  of  exceptions. 

Colt,  J.  The  plaintiff  resorted  to  the  usual  and  proper  mode  of 
proving  that  the  defendants  had  assumed  the  business  of  common 
carriers  of  merchandise  upon  their  cars,  and  produced  evidence  that 
two  other  persons  had   paid  money  at  other  times  to  the  defendants' 

^  Compare :     Butler  v.  Basing,  2  C.  &  P.  613  ;   Suarey  v.  George  Washington,  1 
Woods,  96 ;  Dwight  v.  Brewster,  1  Pick.  50 ;  Pender  v.  Robbius,  6  Jones  L.  207.  —  Ed. 
2  This  case  is  abridged.  —  Ed. 


12  COUP   V.   WABASH,    ST.    LOUIS   AND   PACIFIC    EAILWAY   CO. 

conductors  for  the  transportation  of  merchandise,  with  a  knowledge  of 
the  superintendent  of  the  road.  For  anything  that  appears  to  the 
contrary  in  the  exceptions,  it  may  have  been  proved  tliat  these  two 
otlier  persons  had  so  employed  the  defendants  in  repeated  instances. 
The  evidence  was  entirely  proper  to  go  to  the  jury,  and,  in  the  absence 
of  anything  to  control  or  contradict  it,  would  be  sufficient  to  warrant 
them  in  finding  that  the  defendants  had  assumed  to  be  and  were  com- 
mon carriers,  when  the  plaintiff's  box  was  delivered  to  them  for  trans- 
portation. 

The  jur}'  were  in  effect  instructed  that,  if  they  found  tliat  the  de- 
fendants were  common  carriers,  and  that  the  plaintiff's  box  was  de- 
livered to  them  for  transportation,  and  the  price  of  transportation  paid 
by  her,  the}^  would  be  responsible  for  the  delivery  of  tlie  box  at  its 
place  of  destination.  And  these  instructions  were  sufficiently  correct 
and  accurate. 

If  the  defendants  were  proved  to  be  common  carriers  the  law  sup- 
plies the  proof  of  the  contract,  so  far  as  regards  the  extent  and  degree 
of  liabilit}',  and,  the  bailor  having  proved  delivery  to  a  carrier  and  loss, 
the  burden  is  on  the  carrier  to  discharge  himself  from  liability,  within 
the  exceptions  which  the  law  creates.  No  question  seems  to  have  been 
raised  or  instructions  required  in  regard  to  the  limit  of  the  defendants' 
lialnlity  in  this  case,  if  regarded  as  common  carriers.  Clark  v.  Barn- 
well, 12  How.  272  ;  Alden  v.  Pearson,  3  Gray,  342. 

The  question  whether  the  plaintiff  was  herself  negligent,  in  placing 
her  property  on  the  front  platform  of  the  car,  and  the  point  that  she 
did  not  in  fact  part  with  the  custody  of  the  box,  and  so  cannot  charge 
the  defendants  with  her  loss,  are  not  open  to  the  defendants  upon  these 
exceptions,  for  it  does  not  appear  that  any  such  question  was  raised  or 
point  made  at  the  trial.  Brigham  v.  Wentworth,  11  Cush.  123  ;  Reed 
V.  Call,  5  Cush.  14  ;  Moore  v.  Fitchburg  Railroad,  4  Gray,  465. 

Exceptions  overruled} 


COUP  V.  WABASH,  ST.  LOUIS  AND  PACIFIC  RAILWAY  CO. 

Supreme  Court  of  Michigan,   1885. 

[56  Mich.  111.2] 

Campbell,  J.  Plaintiff,  who  is  a  circus  proprietor,  sued  defendant 
as  a  carrier  for  injuries  to  cars  and  equipments,  and  to  persons  and 
animals  caused  by  a  collision  of  two  trains  made  up  of  his  circus  cars, 
while  in  transit  through  Illinois.     The  court  below  held  defendant  to 

1  Compare:  Knox  v.  Euss,  14  Ala.  249;  Adams  Express  Co.  v.  Cressap,  6  Bush, 
572;  Clark  v.  Rochester,  &c.  R.  R.,  14  N.  Y.  570;  Spears  v.  Lake  Shore  &  M.  S.  R. 
R.,  67  Rarb.  513;  Kemp  ;;.  Coughtou,  11  Johns.  107.  —  Ed. 

^  Opinion  only  is  printed.  —  Ed. 


COUP    V.   WABASH,    ST.    LOUIS    AND    PACIFIC    RAILWAY   CO.  13 

the  common-law  liability  of  a  common  carrier  and  held  there  was  no 
avoiding  liabilit}'  by  reason  of  a  special  contract  under  which  the  trans- 
portation was  directed.  Tlie  principal  questions  raised  on  the  trial 
arose  out  of  discussions  concerning  the  nature  of  defendant's  employ- 
ment, and  questions  of  damage.  Some  other  points  also  appeared.  In 
the  view  which  we  take  of  the  case  tlie  former  become  more  important, 
and  will  be  first  considered. 

Plaintiff  had  a  large  circus  propert}-,  including  horses,  wild  animals, 
and  various  paraphernalia,  with  tents  and  appliances  for  exhibition. 
He  owned  special  cars  fitted  up  for  the  carriage  of  performers  and 
property,  in  which  the  whole  concern  was  moved  from  place  to  place 
for  exhibition. 

The  defendant  company  has  an  organized  connection,  under  the  same 
name,  with  railways  running  between  Detroit  and  St.  Louis,  through 
Indiana  and  Illinois.  On  the  25th  of  July,  1882,  a  written  contract 
was  made  at  St.  Louis  by  defendant's  proper  agent  with  plaintiff  to  the 
following  effect.  Defendant  was  to  furnish  men  and  motive  power  to 
transport  tlie  circus  by  train  of  one  or  more  divisions,  consisting  of 
twelve  flat,  six  stock,  one  elephant,  one  baggage,  and  three  passenger 
coaches,  being  in  all  twenty-three  cars  from  Cairo  to  Detroit  with  priv- 
ilege of  stopping  for  exhibition  at  tliree  places  named,  fixing  the  time 
of  starting  from  each  place  of  exhibition,  leaving  Cairo  August  19, 
Delphi  August  21,  Columbia  City  August  22,  exhibiting  at  Detroit 
August  23,  and  then  to  be  turned  over  to  the  Great  Western  Transfer 
Line  boats.  Plaintiff  was  to  furnish  his  own  cars,  and  two  from  an- 
other company  at  Cairo,  in  good  condition  and  running  order.  It  was 
agreed  that  "  for  the  use  of  the  said  machinery,  motive  power  and 
men  ai\d  the  privileges  above  enumerated,  plaintiff  should  pay  $400  for 
the  run  to  Delphi,  $175  to  Columbia  Citj',  and  $225  to  Detroit,  each 
sum  to  be  paid  before  leaving  each  point  of  departure." 

It  was  further  expressly  stipulated  that  the  agreement  was  not  made 
with  defendant  as  a  carrier,  but  merely  "  as  a  hirer  of  said  machinery, 
motive  power,  and  right  of  way  and  the  men  to  move  and  work  the 
same  ;  the  same  to  be  operated  under  the  management,  direction,  orders, 
and  control  of  said  party  of  the  second  part  [plaintiff]  or  his  agent,  as 
in  his  possession,  and  by  means  of  said  employes  as  his  agents,  but  to 
run  according  to  the  rules,  regulations,  and  time-tables  of  the  said  party 
of  the  first  part." 

The  contract  farther  provides  that  defendant  should  not  be  responsi- 
ble for  damage  by  want  of  care  in  tlie  running  of  the  cars  or  otherwise, 
and  for  stipulated  damages  in  case  of  any  liability.  It  also  provided 
for  transporting  free  on  its  passenger  trains  two  advertising  cars  and 
advertising  material. 

The  plaintiff's  cars  were  made  up  in  two  trains  at  Cairo,  and  divided 
to  suit  instructions.  The  testimony  tended  to  prove  that  two  cars  were 
added  to  the  forward  train  by  order  of  plaintiff's  agent,  but  in  the  view 
we  take  the  question  who  did  it  is  not  important.     The  forward  train 


14         COUP    V.    WABASH,    ST.    LOUIS    AND    PACIFIC    RAILWAY    CO. 

was  for  some  cause  on  which  there  was  room  for  argument  brought  to 
a  standstill,  and  run  into  by  the  other  train,  and  considerable  damage 
done  bv  the  collision. 

Defendants  insisted  that  plaintiff  made  out  no  case  for  recover}-,  and 
that  the  contract  exempted  them,  riaintiff  claimed,  and  the  court  be- 
low held  the  exemption  incompetent. 

Unless  this  undertaking  was  one  entered  into  by  the  defendant  as  a 
common  carrier,  there  is  ver}'  little  room  for  controversy.  The  price 
was  shown  to  be  onl}-  ten  per  cent  of  the  rates  charged  for  carriage, 
and  the  whole  arrangement  was  peculiar.  If  it  was  not  a  contract  of 
common  carriage,  we  need  not  consider  how  far  in  that  character  con- 
tracts of  exemption  from  liability  ma}'  extend.  In  our  view  it  was  in 
no  sense  a  common  carrier's  contract,  if  it  involved  any  principle  of  the 
law  of  carriers  at  all. 

The  business  of  common  carriage,  while  it  prevents  any  right  to  re- 
fuse the  carriage  of  property  such  as  is  generall}-  carried,  implies, 
especiallv  on  railroads,  that  the  business  will  be  done  on  trains  made 
up  b}'  the  carrier  and  running  on  their  own  time.  It  is  never  the  duty 
of  a  carrier,  as  such,  to  make  up  special  trains  on  demand,  or  to  drive 
such  trains  made  up  entirel}'  hy  other  persons  or  b}'  their  cars.  It  is 
not  important  now  to  consider  how  far,  except  as  to  owners  of  goods 
in  the  cars  forwarded,  the  reception  of  cars  loaded  or  unloaded,  in- 
volves the  responsibility  of  carriers  as  to  the  owners  of  the  cars  as 
such.  The  dut}-  to  receive  cars  of  other  persons,  when  existing,  is 
usually  fixed  by  the  railroad  laws,  and  not  by  the  common  law.  But  it 
is  not  incumbent  on  companies  in  their  dut}'  as  common  carriers  to 
move  such  cars  except  in  their  own  routine.  The}'  are  not  obliged  to 
accept  and  run  them  at  all  times  and  seasons,  and  not  in  the  ojrdinary 
course  of  business. 

The  contract  before  us  involves  very  few  things  ordinarily  undertaken 
by  carriers.  The  trains  were  to  be  made  up  entirely  of  cars  which  be- 
longed to  plaintiff  and  which  the  defendant  neither  loaded  nor  prepared, 
and  into  the  arrangement  of  which,  and  the  stowing  and  placing  of  their 
contents  defendant  had  no  power  to  meddle.  The  cars  contained  horses 
which  were  entirely  under  control  of  plaintiff,  and  which  under  any  cir- 
cumstances may  involve  special  risks.  They  contained  an  elephant, 
which  might  very  easily  involve  difficulty,  especially  in  case  of  acci- 
dent. They  contained  wild  animals  which  defendant's  men  could  not 
handle,  and  which  might  also  become  troublesome  and  dangerous.  It 
has  always  been  held  that  it  is  not  incumbent  on  carriers  to  assume  the 
burden  and  risks  of  such  carriage. 

The  trains  were  not  to  be  run  at  the  option  of  the  defendant,  but  had 
short  routes  and  special  stoppages,  and  were  to  be  run  on  some  part  of 
the  road  chiefly  during  the  night.  They  were  to  wait  over  for  exhibi- 
tions, and  the  times  were  fixed  with  reference  to  these  exhibitions  and 
not  to  suit  the  defendant's  convenience.  There  was  also  a  divided 
authority,  so  that  while  defendant's  men  were  to  attend  to  the  moving 


COUP   V.   WABASH,   ST.   LOUIS   AND   PACIFIC   RAILWAY   CO.  15 

of  the  trains,  they  had  nothing  to  do  with  loading  and  unloading  cars, 
and  had  no  right  of  access  or  regulation  in  the  cars  themselves. 

It  cannot  be  claimed  on  any  legal  principle  that  plaintiff  could,  as  a 
matter  of  right,  call  upon  defendant  to  move  his  trains  under  such  cir- 
cumstances and  on  such  conditions,  and  if  he  could  not,  then  he  could 
only  do  so  on  such  terras  as  defendant  saw  fit  to  accept.  It  was  per- 
fectly legal  and  proper,  for  the  greatly  reduced  price,  and  with  the  risks 
and  trouble  arising  out  of  moving  peculiar  cars  aud  peculiar  contents 
on  special  excursions  and  stoppages  to  stipulate  for  exemption  from 
responsibility  for  consequences  w-hich  might  follow  from  carelessness  of 
their  servants  while  in  this  special  employment.  How  far  in  the  ab- 
sence of  contract  the}'  would  be  liable  in  such  a  mixed  emplovment 
where  plaintiff's  men  as  well  as  their  own  had  duties  to  perform  con- 
nected with  the  movement  and  arrangement  of  the  business  we  need 
not  consider. 

It  is  a  misnomer  to  speak  of  such  an  arrangement  as  an  agreement 
for  carriage  at  all.  It  is  substantiallv  similar  to  the  business  of  towing 
vessels,  which  has  never  been  treated  as  carriage.  It  is,  although  on  a 
larger  scale,  analogous  to  the  business  of  furnishing  horses  and  drivers 
to  private  carriages.  "Whatever  may  be  the  liability  to  third  persons 
who  are  injured  by  carriages  or  trains,  the  carriage  owner  cannot  hold 
the  persons  he  employs  to  draw  his  vehicles  as  carriers.  We  had  be- 
fore us  a  case  somewhat  resembling  this  in  more  or  less  of  its  features 
in  Mann  v.  White  River  Log  &  Booming  Co.,  46  Mich.  38,  where  it 
was  sought  to  make  a  carrier's  liability  attach  to  log-driving,  which  we 
held  was  not  permissible.  All  of  these  special  undertakings  have  pecu- 
liar features  of  their  own,  but  they  cannot  be  brought  within  the  range 
of  common  carriage. 

It  is  therefore  needless  to  discuss  the  other  questions  in  the  case, 
which  involve  several  rulings  open  to  criticism.  "We  think  the  defend- 
ant was  not  liable  in  the  action,  and  it  should  have  been  taken  from 
the  jury  and  a  verdict  ordered  of  no  cause  of  action. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

The  other  justices  concurred.^ 

1  Compare:  R.  R.  v.  Glidewell,  39  Ark.  487.  — Ed, 


lb*  BUSSEY   V.   MISSISSIPPI    VALLEY   TRANSPORTATION   CO. 


BUSSEY   &   CO.   V.   MISSISSIPPI   VALLEY 
TRANSPORTATION    CO. 

Supreme  Court  of  Louisiana,  1872. 

[24  La.  Ann.  165] 

Appeal  from  the  Foiirlh  District  Court,  parish  of  Orleans.   Tiieard,  J. 

Howe,  J.  The  plaintiffs,  a  commercial  firm,  sued  the  defendants,  a 
corporation,  whose  business  is  to  transport  merchandise  in  their  own 
model  barges,  and  to  tow  the  barges  of  other  parties  for  hire  between 
St.  Louis  and  New  Orleans. 

The  bill  of  lading,  given  b}'  defendants  to  plaintiffs,  recites  the  receipt 
from  plaintiffs  of  one  barge  loaded  with  hay  and  corn,  "in  apparent 
good  order  in  tow  of  the  good  steamboat  '  Bee'  and  barges,"  "to  be  de- 
livered without  dela}'  in  like  good  order  (the  dangers  of  navigation,  fire, 
explosion,  and  collision  excepted)  to  Busse^'  &  Co.,  at  New  Orleans, 
Louisiana,  on  levee  or  wharf  boat,  he  or  they  paying  freight  at  the 
rate  annexed,  or  $700  for  barge,  and  charges  $267.50."  .  .  .  "  It  is 
agreed  with  shippers,"  the  bill  continues,  "that  the  'Bee'  and  barges 
are  not  accountable  for  sinking  or  damage  to  barge,  except  from  gross 
carelessness." 

It  was  alleged  by  plaintiffs  that  defendants  had  neglected  to  deliver 
the  barge  and  her  valuable  cargo  according  to  their  contract.  The  de- 
fendants answered  by  a  general  denial,  and  b}-  a  recital  of  what  they 
claimed  to  be  the  circumstances  of  the  loss  of  the  barge  and  cargo,  in 
which  they  contended  the}'  were  without  blame ;  and  that  loss  did  not 
result  from  gross  carelessness  on  their  part,  and  they  were  not  liable 
under  tlie  bill  of  lading.  Other  defences  were  raised  by  the  answer 
which  luive  been  abandoned. 

The  court  a  qua  gave  judgment  for  plaintiffs  for  the  amount  claimed 
as  tlie  value  of  the  barge  and  cargo,  $15,272.60,  with  interest  from 
judicial  demand,  and  defendants  appealed. 

The  appellants  contend,  as  stated  in  tlieir  printed  argument, 

'•'First  —  That  the}-  are  not  common  carriers,  or  rather  that  their 
undertaking  in  this,  or  like  cases,  is  not  that  of  a  common  carrier. 

"  Second — That  they  are  liable,  if  liable  at  all,  only  in  case  of  gross 
carelessness. 

"  Third  —  That  the  restriction  of  liability  contained  in  the  agree- 
ment to  tow  the  barge  in  question  exonerates  them,  except  in  case  of 
gross  carelessness  —  as  the  appellants  were  bound  to  use  but  ordinary 
prudence,  even  if  they  were  common  carriers. 

"  Fourth  —  That  the  judgment  rendered  is  for  a  larger  amount  than 
the  testimony  will  authorize," 

The  question  whether  a  towboat  under  the  circumstances  of  this  par- 
ticular case  is  a  common  carrier  has  been  long  settled  in  the  aflfirmative 


BUSSEY    V.   MISSISSIPPI    VALLEY    TRANSPORTATION    CO.  17 

in  Louisiana;  and  the  reasoning  by  which  Judge  Matthews  supported 
this  conclusion  in  the  leading  case  of  Smith  v.  Pierce,  1  La.  354,  is 
worthy  of  the  sagacit}'  for  which  that  jurist  was  pre-eminent.  The  same 
opinion  was  clearl}-  intimated  by  the  Supreme  Court  of  Massachusetts 
in  the  case  of  Sproul  v.  Hemmingway,  14  Pick.  1,  in  which  Chief 
Justice  Shaw  was  the  organ  of  the  court. 

In  the  case  also  of  Alexander  v.  Greene,  7  Hill,  533,  the  Court  of 
Errors  of  New  York  seem  to  have  been  of  the  same  opinion.  Four  of 
the  senators  in  giving  their  reasons  distinctly  state  their  belief  that 
the  towboat  in  that  case  was  a  common  carrier,  and  Judge  Matthews' 
decision  is  referred  to  in  terms  of  commendation  as  a  precedent.  It  is 
true  that  Mr.  Justice  Bronson,  whose  opinion  was  thus  reversed,  in  a 
subsequent  case  declares  (2  Coms.  208)  that  nobody  could  tell  what  the 
Court  of  Errors  did  decide  in  Alexander  u.  Greene,  but  the  facts  remain 
as  above  stated,  and  the  effect  of  the  case  cannot  but  be  to  fortify  the 
authority  of  the  decision  in  1  La. 

In  addition  to  these  authorities  we  have  the  weighty  opinion  of  Mr. 
Kent  who  includes  "  steam  towboats"  in  his  list  of  common  carriers,  2 
Kent,  599,  and  of  Judge  Kane  in  13  L.  R.  399.  On  the  other  hand, 
Judge  Story  seems  to  be  of  a  different  opinion  (Bailments,  §  496),  and 
Mr.  Justice  Grier  differed  from  Judge  Kane. 

So,  too,  the  Supreme  Court  of  New  York,  in  Caton  v.  Rumney,  13 
Wend.  387,  and  Alexander  V.  Greene,  3  Hill,  9  ;  the  Court  of  Appeals 
of  the  same  State  in  Well  v.  Steam  Nav.  Co.,  2  Coms.  207;  the  Supreme 
Court  of  Pennsylvania  in  Leonard  v.  Hendrickson,  18  State,  40,  and 
Brown  V.  Clegg,  63  State,  51  ;  and  the  Supreme  Court  of  Maryland  in 
Perm.  Co.  v.  Sandridge,  8  Gill  &  J.  248,  decided  that  tugboats  in  these 
particular  cases  were  not  common  carriers.  We  are  informed  that  the 
same  decision  was  made  in  the  case  of  the  "  NeafHe,"  lately  decided  in 
the  United  States  Circuit  Court  in  New  Orleans. 

Such  conflict  of  authority  might  be  very  distressing  to  the  student, 
but  for  the  fact  that  when  these  writers  and  cases  cited  by  them 
are  examined  the  discrepancy,  except  in  the  decision  in  63  Penn.,  is 
more  imaginary  than  real.  There  are  two  very  different  ways  in  which 
a  steam  towboat  may  be  employed,  and  it  is  likely  that  IVIr.  Story  was 
contemplating  one  method  and  Mr.  Kent  the  other.  In  the  first  place 
it  may  be  employed  as  a  mere  means  of  locomotion  under  the  entire 
control  of  the  towed  vessel ;  or  the  owner  of  the  towed  vessel  and 
goods  therein  ma}'  remain  in  possession  and  control  of  the  property 
thus  transported  to  the  exclusion  of  the  bailee  ;  or  the  towing  may  be 
casual  merely,  and  not  as  a  regular  business  between  fixed  termini. 
Such  were  the  facts  in  some  form  as  stated  or  assumed  in  Caton  v. 
Rumney,  13  Wend.,  and  Alexander  v.  Greene,  3  Hill,  cited  by  Judge 
Story  in  the  case  of  the  "  Neaffle,"  and  in  the  cases  above  quoted  from 
2  Corns.,  18  Penn.  St.,  and  8  Gill  &  J.;  and  it  might  well  be  said  that 
under  such  circumstances  the  towboat  or  tug  is  not  a  common  carrier. 
But  a  second  and  quite  different  method  of  employing  a  towboat  is 

2 


18  BUSSEY   V.   MISSISSII'l'I    VALLEY    TKANSPORTATION    CO. 

where  she  plies  regularly  between  fixed  termini,  towing  for  hire  and  for 
all  persons,  barges  laden  with  goods,  and  taking  into  her  full  possession 
and  control,  and  out  of  the  control  of  the  bailor  the  property  thus  trans- 
ported. Such  is  the  case  at  bar.  It  seems  to  satisfy  every  requirement 
in  the  definition  of  a  common  carrier.  Story  on  Bail.  §  4'J5.  And  \i 
was  probabl}'  to  a  towboat  employed  in  this  way  that  Mr.  Kent  referred 
in  the  passage  quoted  above  ;  and  that  the  Supreme  Court  of  Massa- 
chusetts had  in  mind  in  the  14  Pick.;  and  see  also  Davis  v.  Housen,  6 
Rob.  2oy,  and  Cla[)p  v.  Stanton,  20  An.  49o.  We  must  think  that  in 
all  reason  the  liability  of  the  defendants  under  such  circumstances 
should  be  precisely  the  same  as  if,  the  barge  being  much  smaller,  it 
had  been  carried,  cargo  and  all,  on  the  deck  of  their  tug. 

But  conceding  that  this  case  as  a  contract  of  affreightment  must  be 
determined  by  the  law  of  Missoiu'i  (4  Martin,  584),  and  that  b}-  that 
law  the  defendants  are  not  common  carriers  as  to  the  plaintiffs,  we 
think  it  clear  from  the  evidence  of  the  defendants'  own  witnesses  that 
they  were  guilt}-  of  "gross  carelessness"  in  their  attempt  to  deliver 
the  plaintiffs'  barge  with  its  cargo  at  the  port  of  New  Orleans,  and 
that  by  this  gross  carelessness  she  was  sunk,  and,  with  her  cargo, 
destroyed. 

What  is  ''gross  carelessness  "?  In  an  employment  requiring  skill, 
it  is  the  failure  to  exercise  skill.  New  World  o.  King,  16  How.  475. 
The  employment  of  the  defendants  certainly  required  skill.  A  lack  of 
that  dexterity  which  comes  from  long  experience  onl}',  might  be  swiftly 
fatal,  for  but  a  single  plank  intervenes  between  the  costly  cargo  and 
instant  destruction.  We  have  but  to  read  the  testimony  of  defendants' 
own  witnesses,  and  especially  Conle}',  Turner,  Burdeau,  and  Sylvester, 
to  see  that  the  attempt  to  land  the  barge  was  made  without  skill,  and 
that  it  might  easil}'  have  been  effected  with  entire  safety. 

We  are  of  opinion  that  the  judgment  was  correctly  rendered  in  favor 
of  plaintiffs,  but  that  the  amount  is  somewhat  excessive.  We  find  the 
value  of  the  property  lost  at  this  port,  less  the  freight  and  charges,  and 
a  small  amount  realized  from  the  wreck,  to  be  $13,268.50. 

It  is  therefore  ordered  that  the  judgment  appealed  from  be  amended 
by  reducing  the  amount  thereof  to  the  sum  of  thirteen  thousand  two 
hundred  and  sixt3'-eight  dollars  and  fifty  cents,  with  legal  interest  from 
judicial  demand  and  costs  of  the  lower  court,  and  that  as  thus  amended 
it  be  affirmed,  appellees  to  pay  costs  of  appeal.^ 

1  Compare:  The  NeafRe,  1  Abb.  C.  C.  465  ;  White  v.  Winnisimmet  Co.,  7  Cush. 
155  ;  White  v.  Mary  Ann,  6  Cal.  462.  —  Ed. 


PATE   V.    HENRX".  19 

PATE  V.    HENRY. 

Supreme  Court  op  Alabama,  1833. 

[5  Stew.  ^  P.  101.] 

In  this  case,  an  action  was  commenced  b}-  Pate  before  a  justice  of 
the  peace  of  Bibb  County,  to  recover  of  Henry  the  sum  of  ten  dollars 
penalty,  for  neglect  of  duty  as  a  ferry  owner.  In  this  trial  the  justice 
rendered  judgment  in  favor  of  the  defendant,  from  which  the  plaintiff 
appealed  to  the  County  Court.  In  tliat  court  the  proof  was,  that  the 
plaintiff  applied  at  the  ferry  to  be  put  across  the  stream,  after  night, 
at  about  six  o'clock ;  but  the  defendant  had  no  ferryman  to  perform 
this  duty,  and  that  the  plaintiff  was  not  ferried  over  until  the  next 
morning.  Upon  this  state  of  facts  the  judge  below  determined  that, 
by  law,  the  owner  of  a  ferry  was  not  bound  to  put  any  person  across 
the  river  between  dark  and  daylight. 

Taylor,  J.  The  Inferior  Coin-t,  as  it  appears  by  the  bill  of  excep- 
tions, decided  that  the  owner  of  a  public  ferry  was  not  bound  to  put 
any  person  across  the  stream  after  night.  This  cannot  be  the  intention 
of  the  statute  regulating  this  subject.  The  i)hraseology  of  the  act 
will  not  bear  this  construction,  and  it  would  be  highly  inexpedient  that 
such  should  be  the  law.  It  would  be  useless  to  enter  into  a  long  dis- 
cussion to  show  the  inconveniences  which  would  be  attendant  upon 
giving  this  latitude  to  ferry  owners  ;  it  is  enough  to  say  the  statute  does 
not  give  it. 

The  counsel  for  the  defendant  dwells  much  upon  the  great  hardship 
of  requiring  persons  in  this  situation  to  expose  themselves  to  the  dan- 
gers attendant  upon  the  transportation  of  persons,  etc.,  during  exces- 
sive darkness,  the  prevalence  of  high  winds,  or  in  the  dead  hour  of 
the  night.  To  require  this  would  be  hard.  But  it  certainly  would  be 
equally  so  to  permit  a  ferryman  to  stop  a  person  travelling  upon  urgent 
business  just  at  nightfall,  when  there  might  be  a  moon  shining  render- 
ing it  almost  as  light  as  it  would  be  of  a  cloudy  day,  merely  because 
he  chose  to  do  so. 

There  is  no  danger,  however,  to  be  apprehended  by  the  ferryman.  If 
the  wind  was  high,  or  the  night  dark,  when  the  application  was  made 
to  him,  so  as  to  expose  him  to  danger  in  an  attempt  to  cross,  he  might 
show  this  to  justify  his  refusal :  and  even  were  it  late  at  night,  after 
the  usual  bedtime,  it  might,  under  some  circumstances,  as  where  the  ferry 
was  some  distance  from  liis  dwelling,  and  probably  in  many  other 
cases,  be  a  sufficient  excuse. 

The  opinion  of  the  Inferior  Court  was  certainly  wrong. 

But  it  is  contended  the  suit  should  have  been  upon  the  bond. 

The  statute  expressly  imposes  the  penalty  of  ten  dollars  upon  any 
ferryman  for  "  failing  to  do  his  duty,"  to  be  recovered  by  any  person 
detained  thereb}',  before  a  justice  of  the  peace. 


20  THOMPSON    V.    MATTHEWS. 

It  is  insisted,  however,  that  it  is  not  shown  by  the  proceedings  be- 
low that  the  defendant's  was  a  public  ferry. 

The  indorsement  on  the  warrant  states  that  the  suit  "is  brought  to 
recover  ten  dollars  forfeited  by  the  defendant  as  a  kee^xir  of  a  public 
ferry."  The  whole  of  the  proceedings  below,  show  that  it  was  con- 
sidered as  a  public  ferry. 

The  judgment  must  be  reversed  ;  but  as  the  defendant  may  be  able 
to  show  some  good  reason  for  his  conduct,  the  cause  will  be  remanded, 
if  his  counsel  wishes  it ;  otherwise  judgment  will  be  rendered  here  for 
the  ten  dollars,  forfeited  under  the  statute. 


THOMPSON   V.    MATTHEWS. 

Vice-Chancellor's  Court,  New  York,  1834. 

[2  Edw.  Ch.  212.] 

The  defendants,  Charles  S.  Matthews,  Charles  Woods,  and  James 
Hall,  were  ordered  to  show  cause  on  this  day  why  an  injunction  should 
not  issue,  restraining  them  "  from  transporting  or  causing  to  be  trans- 
ported across  the  bridge  from  Hai-laem  across  the  Harlaem  river  any 
marble  or  stone  in  quantities  exceeding  at  one  time  or  in  any  one  load 
the  weight  of  two  tons,  until  the  further  order  of  the  court." 

The  bill  in  the  cause  was  filed  by  Samuel  M.  Thompson,  Samuel 
Flewelling,  William  F.  Coles,  and  Isaac  U.  Coles,  for  and  in  behalf  of 
themselves  and  the  other  owners  and  proprietors  of  the  bridge. 

The  Vice-Chancellor.  The  motion  for  an  injunction  cannot  be 
granted.  The  road  across  the  bridge  is  undoubtedly  a  highway,  though 
all  persons  and  carriages  passing  must  pay  a  toll :  but,  still,  it  is  a 
public  highway.  The  affidavits  in  opposition  take  very  much  from  the 
force  of  the  allegations  in  the  bill.  But  this  is  a  case  in  which  the  par- 
ties have  legal  rights.  The  bridge  is  a  public  one.  If  persons  take 
improper  loads  and  the  bridge  has  been  properly  constructed,  then  the 
owners  of  it  have  a  reraed}'  by  a  special  action  on  the  case  or  in  tres- 
pass for  damage  done  ;  while,  on  the  other  hand,  if  passengers  and 
their  property  should  sustain  an  injur}'  by  a  breaking  from  ordinary 
loads,  the  owners  must  respond  in  damages.  The  law  affords  a  recip- 
rocal remedy  in  all  such  cases  ;  and  I  shall  leave  the  parties  to  their 
legal  right. 

It  is  true,  this  court  has  jurisdiction  to  prevent  irreparable  injury- ; 
but  the  injury  is  not  irreparable,  where  damages,  as  here,  can  be  ascer- 
tained without  difficulty,  and  compensation  made  in  money.  And  I 
would  observe,  with  respect  to  the  tolls,  that  no  equity  arises  from  the 
circumstance  of  the  comi)lainants  not  being  enabled  to  charge  more 
than  nine  cents  for  a  heavy  load.     This  is  a  matter  for  the  legislature ; 


REX   V.    IVENS.  21 

and  the  complainants  will  have  an  opportunitj-  of  applying  for  an  amen- 
datory act,  raising  their  tolls,  before  the  contract,  which  the  defendants 
have  entered  into  and  which  requires  this  large  quantity  of  marble  to  be 
transported,  shall  have  been  completed.  Motion  denied. 


REX  V,  IVENS. 

MONMOTTTH     ASSIZES,     1835. 

[7  C.  &r  P.  213.] 

Indictment  against  the  defendant,  as  an  innkeeper,  for  not  receiving 
Mr.  Samuel  Probyn  Williams  as  a  guest  at  his  inn,  and  also  for  refus- 
ing to  take  his  horse.  The  first  count  of  the  indictment  averred  that 
the  prosecutor  had  offered  to  pay  a  reasonable  sura  for  his  lodgings  ; 
and  the  first  and  second  counts  both  stated  that  there  was  room  in  the 
inn.  The  third  count  omitted  these  allegations,  and  also  omitted  all 
mention  of  the  horse.  The  fourth  count  was  similar  to  the  third,  but 
in  a  more  general  form.  Plea  —  Not  guilty. 

Coleridge,  J.  (in  summing  up).  The  facts  in  this  case  do  not  ap- 
pear to  be  much  in  dispute  ;  and  though  I  do  not  recollect  to  have  ever 
heard  of  such  an  indictment  having  been  tried  before,  the  law  applicable 
to  this  case  is  this:  —  tliat  an  indictment  lies  against  an  innkeeper  who 
refuses  to  receive  a  guest,  he  having  at  the  time  room  in  his  house ; 
and  either  the  price  of  the  guest's  entertainment  being  tendered  to 
him,  or  such  circumstance  occurring  as  will  dispense  with  that  tender. 
This  law  is  founded  in  good  sense.  The  innkeeper  is  not  to  select  his 
guests.  He  has  no  right  to  say  to  one,  jou  shall  come  into  ray  inn, 
and  to  another  you  shall  not,  as  ever}'  one  coming  and  conducting  him- 
self in  a  proper  manner  has  a  right  to  be  received  ;  and  for  this  pur- 
pose innkeepers  are  a  sort  of  public  servants,  the}-  having  in  return  a 
kind  of  privilege  of  entertaining  travellers,  and  supplying  thera  with 
what  they  want.  It  is  said  in  the  present  case,  that  Mr.  Williams,  the 
prosecutor,  conducted  himself  improperl}-,  and  therefore  ought  not  to 
have  been  admitted  into  the  house  of  the  defendant.  If  a  person  came 
to  an  inn  drunk,  or  behaved  in  an  indecent  or  improper  manner,  I  am 
of  opinion  that  the  innkeeper  is  not  bound  to  receive  him.  You  will 
consider  whether  Mr.  Williams  did  so  behave  here.  It  is  next  said 
that  he  came  to  the  inn  at  a  late  hour  of  the  night,  when  probably  the 
family  were  gone  to  bed.  Have  we  not  all  knocked  at  inn  doors  at 
late  liours  of  the  night,  and  after  the  family  have  retired  to  rest,  not 
for  the  purpose  of  annoyance,  but  to  get  tlie  people  up?  In  this  case 
it  further  appears,  that  tlie  wife  of  defendant  has  a  conversation  with 
the  prosecutor,  in  which  she  insists  on  knowing  his  name  and  abode. 
I  think  that  an  innkeeper  has  no  right  to  insist  on  knowing  those  par- 
ticulars ;  and  certainly  you  and  I  would  think  an  innkeeper  very  im- 


22  REX   V.    IVENS. 

pertinent,  who  asked  either  the  one  or  the  other  of  any  of  us.  However, 
the  prosecutor  gives  his  name  and  residence ;  and  supposing  that  he 
did  add  the  words  "  and  be  damned  to  you,"  is  that  a  sufficient 
reason  for  keeping  a  man  out  of  an  inn  who  has  travelled  till  mid- 
niglit?  I  think  that  the  prosecutor  was  not  guilty  of  such  miscon- 
duct as  would  entitle  the  defendant  to  shut  him  out  of  his  house. 
It  has  been  strongly  objected  against  the  prosecutor  b}'  Mr.  Godson, 
that  he  had  been  travelling  on  a  Sunday.  To  make  that  argument  of 
anj'  avail,  it  must  be  contended  that  travelling  on  a  Sunday  is  illegal. 
It  is  not  so,  although  it  is  what  ought  to  be  avoided  whenever  it  can  be. 
Indeed  there  is  one  thing  which  shows  that  travelling  on  a  Sunday  is 
not  illegal,  which  is,  that  in  many  places  you  pa}-  additional  toll  at  the 
turnpikes  if  you  pass  through  them  on  a  Sundaj',  b^'  which  the  legisla- 
ture plainly  contemplates  travelling  on  a  Sunday  as  a  thing  not  illegal. 
I  do  not  encourage  travelling  on  Sunday's,  but  still  it  is  not  illegal. 
With  respect  to  the  non-tender  of  money  b}'  the  prosecutor,  it  is  now 
a  custom  so  universal  with  innkeepers  to  trust  that  a  person  will  pay 
before  he  leaves  an  inn,  that  it  cannot  be  necessar}'  for  a  guest  to  ten- 
der money  before  he  goes  into  an  inn  ;  indeed,  in  the  present  case,  no 
objection  was  made  that  Mr.  Williams  did  not  make  a  tender ;  and 
they  did  not  even  insinuate  that  they  had  an}-  suspicion  that  he  could 
not  pay  for  whatever  entertainment  might  be  furnished  to  him.  I  think, 
tiierefore,  that  that  cannot  be  set  up  as  a  defence.  It  however  remains 
for  me  next  to  consider  the  case  with  respect  to  the  hour  of  the  night 
at  which  Mr.  Williams  applied  for  admission  ;  and  the  opinion  which 
I  liave  formed  is,  that  the  lateness  of  the  hour  is  no  excuse  to  the  de- 
fendant for  refusing  to  receive  the  prosecutor  into  his  inn.  Wh}'  are 
inns  established?  For  the  reception  of  travellers,  who  are  often  very 
far  distant  from  their  own  homes.  Now,  at  what  time  is  it  most  essen- 
tial that  travellers  should  not  be  denied  admission  into  the  inns?  I 
should  say  when  they  are  benighted,  and  when,  from  any  casualt}-,  or 
from  the  badness  of  the  roads,  the}*  arrive  at  an  inn  at  a  very  late 
hour.  Indeed,  in  former  times,  when  the  roads  were  much  worse,  and 
were  much  infested  with  robbers,  a  late  hour  of  the  night  was  the  time, 
of  all  others,  at  which  the  traveller  most  required  to  be  received  into 
an  inn.  I  think,  therefore,  that  if  the  traveller  conducts  himself  prop- 
erly, the  innkeeper  is  bound  to  admit  him,  at  whatever  hour  of  the 
night  he  may  ariive.  The  only  other  question  in  this  case  is,  whether 
the  defendant's  inn  was  full.  There  is  no  distinct  evidence  on  the  part 
of  the  prosecution  that  it  was  not.  But  I  think  the  conduct  of  the 
parties  shows  tliat  the  inn  was  not  full;  because,  if  it  had  been,  there 
could  have  been  no  use  in  the  landlady  asking  the  prosecutor  his  name, 
and  saying,  that  if  he  would  tell  it,  she  would  ring  for  one  of  the 
servants.  Verdict  —  Guilts/. 

Park,  J.,  sentenced  the  defendant  to  pay  a  fine  of  20s.' 

^  Compare :  Hawthorne  v.  Hammond,  1  C.  &  K.  404 ;  Queen  v.  Ryraer,  2  Q.  B.  D. 
136;  Kisten  v.  Hildebraud,  9  B.  Mou.  72;  Atwater  v.  Sawyer,  76  Me.  539. —Ed. 


LAMOND    V.    THE    GORDON    HOTELS.  23 

LAMOND   V.   THE  GORDON    HOTELS,    LIMITED. 
Court  of  Appeal,   1897. 

[1897.   1    Q.   B.  541.1] 

Lord  Esher,  M.  R.  The  plaintiff  went  to  a  hotel  in  Brighton,  and 
went  there  with  the  intention  of  staying  at  the  hotel.  She  was  taken 
in  and  given  rooms,  and  she  stayed  there  for  a  period  of  ten  months. 
It  was  then  intimated  to  her  that  the  direction  wished  her  to  leave, 
but  this  she  refused  to  do.  Then  notice  was  given  to  her  requiring  her 
to  leave,  and  as  she  still  refused,  advantage  was  taken  of  her  being 
out  of  the  hotel,  and  her  things  were  brought  down  and  put  outside, 
and  on  her  return  she  was  refused  admittance. 

The  foundation  of  her  action  is  that  she  was  not  allowed  to  sta}*  on 
at  the  hotel.  It  was  tried  before  the  county  court  judge  of  Brighton 
without  a  jur}',  and  he  has  arrived  at  certain  conclusions  of  fact.  He 
has  found  that  the  plaintiff  was  taken  into  the  hotel  as  a  traveller  ac- 
cording to  the  custom  of  England,  and  to  find  that  he  must  have  also 
found  that  the  hotel  carried  on  business  according  to  the  custom,  so 
that  the  proprietors  were  bound  to  take  in  every  one  that  came  and 
asked  for  lodgings,  if  there  was  room  for  them.  He  finds  that  she 
stayed  so  long  at  the  hotel  that  at  last  notice  was  given  to  her  to  leave  ; 
and  his  findings  are  equivalent  to  saA'ing  that,  when  notice  was  given, 
she  was  no  longer  a  traveller,  nor  entitled  to  be  treated  as  such  under 
the  custom.     If  this  is  a  question  of  fact  it  is  not  subject  to  appeal. 

The  learned  judge  must  have  found  that  the  proprietors  of  the  hotel 
lield  it  out  to  the  public  as  an  inn  that  would  take  in  any  traveller  who 
came,  provided  there  was  room  to  do  so.  I  think  it  is  a  question  of 
fact  what  was  the  intention  of  those  who  carried  on  the  business  of  the 
hotel,  and  the  count}'  court  judge  has  stated  what  that  intention  was. 
Such  a  finding  in  this  case  does  not  affect  the  position  of  other  hotels, 
and  I  think  it  is  open  to  argument  that  the  large  London  hotels  do  not 
hold  themselves  out  as  receiving  customers  according  to  the  custom  of 
England  —  at  an}'  rate,  such  a  matter  would  be  a  question  of  fact. 

Then  comes  the  question  whether  the  plaintiff  went  to  the  hotel  in 
the  capacit}'  of  a  traveller.  That  is  also  a  question  of  fact  which  the 
county  court  judge  has  determined. 

The  plaintiff  has  brought  this  action  relying  on  the  custom  of  Eng- 
land, and  not  on  the  point  raised  now  for  the  first  time  of  a  contract 
outside  the  custom.  The  question  is  whether  it  is  the  law  that  if  a  per- 
son goes  to  an  inn  in  the  character  of  a  traveller  that  person  retains 
the  same  character  for  any  time  however  long.  If  so,  the  law  would 
be  contrar}'  to  the  truth  ;  and  I  will  never  submit,  unless  compelled  by 
an  Act  of  Parliament,  to  say  that  a  thing  shall  be  deemed  to  be  that 

1  Opinious  only  are  printed.  —  Ed. 


24  LAMOND  V.   THE  GORDON  HOTELS. 

which  it  is  not.  Therefore,  the  question  whether  a  person  has  ceased 
to  be  a  traveller  seems  to  me  again  to  be  a  question  of  fact,  and  mere 
length  of  residence  is  not  decisive  of  the  matter,  because  there  may  be 
circumstances  which  show  that  the  length  of  the  stay  does  not  prevent 
the  guest  being  a  traveller,  as,  for  instance,  where  it  arises  from  illness  ; 
but  it  is  wrong  to  say  that  length  of  time  is  not  one  of  the  circum- 
stances to  be  taken  into  account  in  determining  wiietlier  the  guest  has 
retained  his  character  of  traveller.  In  ni}'  opinion  there  was  in  this 
case  evidence  of  facts  which  justified  the  county  court  judge  in  saying 
that  the  plaintiff  had  ceased  to  be  a  traveller.  If  thia  is  a  question  of 
fact,  there  is  no  appeal  from  the  decision  of  the  judge  ;  but  even  if 
there  were  an  appeal,  I  agree  with  the  conclusion  to  which  he  came, 
that  the  evidence  showed  that  the  plaintiff  was  no  longer  a  traveller. 
Her  case,  therefore,  was  not  within  the  custom,  and  the  relations  be- 
tween her  and  the  innkeepers  were  not  under  the  custom. 

It  is  put  as  an  objection  that  if  the  relation  between  them  is  changed 
the  rights  of  the  innkeeper  against  the  plaintiff  had  ceased.  I  do  not 
say  whether  this  is  so,  but  the  argument  is  not  sufficient  to  prevent  the 
conclusion  at  which  I  have  arrived,  that  the  relation  may  be  altered 
from  the  original  one  of  traveller  and  innkeeper. 

Then  we  were  asked  to  imply  a  contract  or  agreement  by  both  par- 
ties, by  which  the  innkeeper  contracted  to  lodge  the  plaintiff  so  long 
as  she  wished  to  stay,  upon  the  same  terms  as  those  upon  which  she 
was  taken  in,  so  that  she  was  under  no  ol)ligation  to  sta}-  an  hour  longer 
than  she  chose,  but  he  was  bound  to  keep  her  so  long  as  she  liked  to 
remain.  To  my  mind  such  a  contract  cannot  have  been  the  intention 
of  the  parties  when  the  relationship  commenced. 

I  think,  therefore,  there  is  no  ground  for  disturbing  the  decision  in 
this  case,  and  the  appeal  must  be  dismissed. 

Lopes,  L.  J.  The  law  of  England  imposed  exceptional  liabilities  on 
an  innkeeper  and  gave  him  exceptional  rights.  But  these  exceptional 
liabilities  and  rights  applied  only  as  between  the  innkeeper  and  those 
persons  who  came  to  the  inn  in  the  character  of  travellers.  This  is 
shown  clearly  b}'  the  old  foi'in  of  writ  against  an  innkeeper  for  refusing 
to  supply  food  and  lodging,  and  from  the  old  form  of  declaration, 
which  will  be  found  in  BuUen  and  Leake's  Precedents  of  Pleading. 
The  question  before  us  is,  in  wliat  character  was  the  plaintiff  living 
at  the  inn  when  she  received  notice  to  quit  it?  Was  she  there  as  a  travel- 
ler, or  had  she  ceased  to  be  a  traveller  and  remained  in  some  other 
capacity?  I  cannot  help  thinking  tiiat  this  is  a  question  of  fact  on 
whicli  the  finding  of  the  judge  was  conclusive  ;  but  I  do  not  desire  to 
rest  m}-  judgment  on  that  ground,  whicli  may  be  regarded  rather  as 
technical.  In  my  opinion  there  is  no  such  rule  as  is  suggested,  that  a 
person  who  comes  to  an  inn  as  a  traveller  and  remains  there  must  re- 
main as  a  traveller.  In  my  o|)inion  the  learned  judge  was  right  when 
he  found  that  the  plaintiff  when  she  was  requii-ed  to  leave  had  ceased  to 
be  a  traveller,  and  that,   therefore,  the  innkeeper  was  fully  justified, 


LAMOND   V.   THE   GORDON   HOTELS.  25 

after  giving  reasonable  notice,  in  acting  as  he  did.     His  judgment  and 
that  of  the  Divisional  Court  supporting  it  should  be  affirmed. 

Chitty,  L.  J.  The  plaintiff's  claim  is  founded  on  the  liability  im- 
posed by  the  general  custom  of  England  on  the  keeper  of  a  common 
inn.  There  is  no  question  of  contract  raised  between  the  parties.  The 
county  court  judge  found,  cither  as  a  question  of  fact  or  a  mixed  ques- 
tion of  law  and  fact,  that  the  defendants'  hotel  was  an  inn,  and  from 
that  finding  tliere  is  no  ap[)eal.  Starting  from  that  point,  he  con- 
sidered whether  the  plaintiff,  after  being  in  the  hotel  for  a  period  of 
ten  months  and  considering  all  the  circumstances  of  the  case,  still 
retained  the  character  of  a  traveller  which  he  attributed  to  her  when 
she  first  went  to  the  inn  ;  and  he  decided,  and  this  also  ma}'  be  a  ques- 
tion of  mixed  fact  and  law,  that  she  did  not  retain  it.  If  tiiis  is  a 
question  of  fact  there  is  nothing  more  to  be  said  on  the  appeal.  The 
plaintiff's  counsel,  however,  tried  to  treat  it  as  a  question  of  law  ;  and 
turn  his  proposition  about  as  you  will,  it  still  comes  to*  this,  that  if  a 
person  once  enters  an  inn  as  a  traveller  he  can  remain  there  in  that 
character  as  long  as  he  pleases.  With  reference  to  this  proposition, 
though  there  are  man}-  authorities  on  the  question  of  the  common-law 
liability  of  an  innkeeper,  no  suggestion  to  this  effect  can  be  found,  and 
in  my  opinion  it  is  not  the  law.  It  may  be  a  difficult  question  to  de- 
termine in  any  case  when  the  character  of  traveller  ceases  and  that  of 
lodger  or  boarder  begins  ;  but  in  this  present  case  I  think  the  judge 
was  entitled  on  the  evidence  to  come  to  the  conclusion  at  which  he 
arrived,  that  the  plaintiff  had  ceased  to  be  a  traveller.  The  custom  of 
England  does  not  extend  to  persons  who  are  in  an  inn  as  lodgers  or 
boarders,  and  the  length  of  time  that  a  guest  has  stayed  is  a  material 
ingredient  in  determining  such  a  question  as  was  before  the  judge.  If 
the  character  of  traveller  is  continuous,  it  would  follow  that  the  plaintiff 
would  have  a  right  to  reside  at  the  hotel  all  her  life,  provided  she  con- 
formed to  the  regulations  and  paid  her  bills,  but  that  she  could  leave 
at  any  moment,  while  the  landlord  would  be  bound  to  provide  lodging 
without  any  power  to  give  notice  to  her  to  leave.  This  is  a  startling 
proposition,  and,  as  it  is  moreover  unsupported  by  authority,  I  cannot 
assent  to  it.  It  is  hardly  necessary  to  say  anything  about  the  sug- 
gested implied  contract.  The  action  was  not  founded  on  it,  and  the 
proposition  itself  will  not  bear  examination.  For  these  reasons  I  con- 
cur in  the  judgments  already  delivered. 

Appeal  dismissed} 

1  Compare:  Moore  v.  Beech  Co.,  87  Cal.  483  ;  Davis  v.  Gay,  141  Mass.  531  ;  Horner 
V.  Harvey,  3  N.  M.  197  ;  Howth  v.  Franklin,  20  Tex.  798;  Clary  v.  Willey,  49  Vt.  55. 
—  Ed. 


26  EVERGKEEN    CEMETERY   ASSOCIATION    V.    BEECHER. 


EVERGREEN   CEMETERY   ASSOCIATION   v.  BEECHER. 
Supreme  Court  of  Connecticut,   1885. 

[53   Conn.  551.1] 

Pardee,  J.  This  is  a  complaint  asking  leave  to  take  land  for  ceme- 
teiy  purposes  by  right  of  eminent  domain.  The  case  has  been  reserved 
for  our  advice. 

The  plaintiff  is  the  owner  of  a  cemetery,  and  desires  to  enlarge  it  by 
taking  several  adjoining  pieces  of  land,  each  owned  b}'  a  different  per- 
son, and  has  made  these  owners  joint  defendants.  Because  of  this 
joinder  they  demur.  But  we  think  that  it  is  in  harmon}'  with  our  prac- 
tice in  analogous  proceedings  and  with  the  spirit  of  the  Practice  Act, 
and  that  it  promotes  speed}',  complete,  and  inexpensive  justice,  with- 
out placing  an}'  obstruction  in  the  way  of  any  defendant  in  protecting 
his  rights.  Each  carries  his  own  burden  only;  he  is  not  made  to  carry 
that  of  an}-  of  his  associates.  Therefore  the  complaint,  so  far  forth  as 
this  objection  is  concerned,  is  sufficient. 

The  safety  of  the  living  requires  the  burial  of  the  dead  in  proper 
time  and  place;  and,  inasmuch  as  it  may  so  happen  that  no  individual 
may  be  willing  to  sell  land  for  such  use,  of  necessit}'  there  must  remain 
to  the  public  the  right  to  acquire  and  use  it  under  such  regulations  as  a 
proper  respect  for  the  memory  of  the  dead  and  the  feelings  of  survivors 
demands.  In  order  to  secure  for  burial  places  during  a  period  extend- 
ing indefinitely  into  the  future  that  degree  of  care  universalh'  demanded, 
the  legislature  permits  associations  to  exist  with  power  to  discharge  in 
behalf  and  for  the  benefit  of  the  public  the  duty  of  providing,  main- 
taining', and  protecting  them.  The  use  of  land  by  them  for  this  pur- 
pose does  not  cease  to  be  a  public  use  because  the}'  require  varying 
sums  for  rights  to  bury  in  different  localities ;  not  even  if  the  cost  of 
the  right  is  the  practical  exclusion  of  some.  Corporations  take  land 
by  right  of  eminent  domain  primarily  for  the  benefit  of  the  public,  in- 
cidentally for  the  benefit  of  themselves.  As  a  rule  men  are  not  allowed 
to  ride  in  cars,  or  pass  along  turnpikes,  or  cross  toll-bridges,  or  have 
grain  ground  at  the  mill,  without  making  compensation.  One  man  asks 
and  pays  for  a  single  scat  in  a  car;  another  for  a  special  train;  all 
have  rights  ;  each  pays  in  proportion  to  his  use  ;  and  some  are  excluded 
because  of  their  inability  to  pay  for  any  use;  nevertheless,  it  remains 
a  public  use  as  long  as  all  persons  have  the  same  measure  of  right  for 
the  same  measure  of  money. 

But  it  is  a  matter  of  common  knowledge  that  there  are  many  ceme- 
teries which  are  strictly  private ;  in  which  the  public  have  not,  and  can- 
not acquire,  tlie  right  to  bury.  Clearly  the  proprietors  of  these  cannot 
take  land  for  such  continued  private  use  by  right  of  eminent  domain. 

1  Opinion  only  is  printed.  — Eo. 


WEYMOUTH   V.    PENOBSCOT   LOG  DRIVING  CO.  27 

The  complaint  alleges  that  the  plaintiff  is  an  association  dul}'  organized 
under  the  laws  of  this  State  for  the  purpose  of  establishing  a  burying 
ground ;  that  it  now  owns  one ;  that  it  desires  to  enlarge  it ;  and  that 
such  enlargement  is  necessary  and  proper.  There  is  no  allegation  that 
the  land  which  it  desires  to  take  for  such  enlargement  is  for  the  public 
use  in  the  sense  indicated  in  tliis  opinion. 

Tlierefore  the  Superior  Court  is  advised  that  for  the  reason  that  the 
coinplaint  docs  not  set  out  anj-  right  in  the  plaintiffs  to  acquire  title  to 
the  land  of  the  defendants  otherwise  than  by  their  voluntary  deed,  the 
demurrer  must  be  sustained. 

In  this  opinion  the  other  judges  concurred.^ 


WEYMOUTH   V.   PENOBSCOT  LOG   DRIVING  CO. 

Supreme  Court  of  Maine,  1880. 

[71  Me.  29.'] 

An  action  on  the  case  to  recover  damages  of  the  defendant  corpora- 
tion for  carelessly  and  negligenth'  preventing  the  plaintiffs  from  season- 
ably delivering  751,290  feet  of  spruce  logs,  and  48,780  feet  of  pine 
logs,  cut  and  hauled  by  them  in  the  winter  of  1872-3,  on  landings  on  the 
stream  between  Caribou  lake  and  Chesuncook  lake,  at  the  outlet  of 
Chesuncook  lake,  in  consequence  of  which  600,000  feet  of  the  plaintiff's 
logs  were  not  driven  to  market  in  the  3-ear  1873,  but  were  left  behind 
in  an  exposed  position,  where  man}'  were  lost,  and  there  was  a  great 
shrinkage  in  quantity  and  quality. 

The  writ  is  dated  December  8,  1877. 

Plea,  general  issue. 

The  verdict  was  for  plaintiff  for  $1,496.51,  and  the  defendants  move 
to  set  the  same  aside  as  against  law,  and  against  evidence  and  the 
weight  of  evidence.  The  defendants  also  allege  exceptions  to  refusals 
of  the  presiding  judge  to  give  certain  requested  instructions. 

Danforth,  J.  It  is  contended  that  this  action  is  not  maintainable, 
and  the  court  was  requested  to  instruct  the  jury  that,  '•  The  corporation 
is  not  by  their  charter  under  any  legal  obligation  to  drive  the  logs; 
but  the  charter  gives  them  the  power  to  drive,  and  for  all  such  logs  as 
they  do  drive,  the  corporation  is  to  be  paid." 

It  is  claimed  that  this  instruction  is  required  by  a  fair  construction 
of  the  terms  of  the  charter. 

It  is  unquestionably  true,  that  when  any  doubt  exists  as  to  the  mean- 
ing of  any  language  used,  it  is  to  be  interpreted  in  the  light  afforded  by 
the  connection  in  which  it  is  used,  the  several  [)rovisions  bearing  upon 

1   Compare  :  Lumbard  v.  Stearns,  4  Cush.  60.  —  Ed. 
■■^  This  case  is  abridged.  —  Ed. 


28  WEYMOUTH   V.    PENOBSCOT   LOG   DRIVING   CO. 

the  same  subject  matter,  the  general  purpose  to  be  accomplished,  as 
well  as  the  manner  in  which  it  is  to  be  accomplished. 

It  is  also  true  that  when  the  terms  of  an  act  are  free  from  obscurity, 
leaving  no  doubt  as  to  the  meaning  of  the  legislature,  no  construction 
is  allowed  to  give  the  law  a  different  meaning,  whatever  ma\-  be  the 
reasons  therefor. 

The  first  ground  taken  in  support  of  the  request,  is  that  the  defendant 
compan}-  is  a  "  mutual  association  combined  together  for  mutual  benefit 
to  aid  each  other  in  the  accomplishment  of  a  given  object  in  which  all 
are  equall}' interested,"  and  the  inference  drawn  is,  that  each  is  equall}' 
responsible  for  the  doings  of  all.  This  view  is  endeavored  to  be  sus- 
tained b)'  the  alleged  facts  that  "it  is  not  a  stock  compau}',  has  no 
capital,  no  power  to  do  anything  for  others  than  its  own  members,  no 
permanent  stockholders,  no  stock,  and  no  provision  for  raising  money 
to  pay  an}"  charges  or  expenses  except  the  expense  of  driving." 

If  these  suggestions  are  found  to  be  apparent  from  the  provisions  of 
the  charter,  they,  or  a  portion  of  them,  will  be  entitled  to  great  weight, 
and  might  perhaps  be  considered  conclusive.  The  most  important  of 
them  are  not  so  found.  It  may  be  that  the  charter  was  obtained  for 
the  mutual  benefit  of  the  log  owners.  Nevertheless,  by  its  express 
terms  it  constitutes  its  members  a  corporation  with  all  the  rights,  lia- 
bilities, and  iudividualit}"  attached  to  corporations  of  a  similar  nature. 
The  first  section  provides  that  certain  persons  named,  with  their  asso- 
ciates and  successors,  "are  hereby  made  and  constituted  a  body  politic 
and  corporate,"  and  as  such  it  ma}'  sue  and  be  sued,  prosecute  and  de- 
fend, ma}'  hold  real  and  personal  estate,  not  exceeding  fiftj-  thousand 
dollars  at  any  one  time,  and  ma}'  grant  and  vote  money.  Thus  the 
charter  gives  all  the  attributes  of  a  corporation  and  none  of  a  simple 
association.  It  ma}'  not  have  stock,  and  if  not,  it  can  have  no  stock- 
holders. But  that  is  not  necessary  to  a  corporation,  and  does  not  con- 
stitute an  element  in  any  approved  definition  of  it.  If  it  has  no  stock, 
it  may  have  a  capital,  and  though  it  may  assess  only  a  certain  amount 
upon  the  logs  driven,  the  charter  does  not  preclude  money  from  being 
raised  in  other  ways.  Nor  is  the  amount  which  may  be  assessed  upon 
the  logs  driven  limited  to  the  ex[)ense  of  driving.  The  amendment  of 
1865  provides  for  a  toll,  not  exceeding  a  certain  amount,  upon  the  logs 
driven  "  sufficient  to  cover  all  expenses,  and  such  other  sums  as  may  be 
necessary  for  the  purposes  of  the  company." 

Nor  do  we  find  any  provision  *'  that  it  may  not  do  anything  for  others 
than  its  own  members."  By  the  charter  it  may  drive  all  the  logs  and 
other  timber  to  be  driven  down  the  west  branch  of  the  Penobscot  river, 
while  all  owners  of  such  logs  may  not  be  members  of  the  company.  It 
does  not  appear  whether  the  first  corporators  were  such  owners  or 
otherwise.  In  the  charter  wc  find  no  provision  prescribing  the  qualifi- 
cation of  the  members.  The  bylaws  provide,  not  that  the  member  shall 
be  an  owner  of  logs  to  be  driven,  but  he  must  be  an  "  owner  of  timber 
lands  or  engaged  in  a  particular  lumbering  operation  on  the  west  branch 


WEYMOUTH    V.    PENODSCOT   LOG    DRIVING   CO.  29 

of  the  Penobscot  river,  or  its  tributaries,"  and  can  then  be  a  member 
only  on  appUcalion  and  receiving  a  majority  of  the  votes  of  the  mem- 
bers present.  Hence  the  company  may  be  acting  for  otliers,  not  mem- 
bers, while  its  members  may  not  own  a  single  log  in  the  drive. 

There  is  then  no  ground  upon  which  this  defendant  can  be  held  to  l)e 
a  mutual  association,  acting  as  a  partnership  for  the  benefit  of  its  own 
members  only,  each  bound  by  tlie  acts  of  the  others,  but  it  must  be  held  as 
a  corporation  acting  as  such,  for  the  benefit  of  its  own  members,  perhaps, 
but  also  for  such  other  owners  of  logs  as  may  not  choose  to  become 
members,  or  may  not  possess  the  required  qualification  of  "  being  a 
land  owner,  or  a  practical  operator,"  or  may  not  be  able  to  get  the 
requisite  number  of  votes  to  make  them  sucli.  It  is  a  significant  fact 
that  in  this  case  it  does  not  appear  that  the  plaintiff  is  a  member  of  the 
defendant  company,  and  until  that  does  appear  he  cannot  be  subjected 
to  the  liabilities  of  one. 

The  fact  that  there  is  no  specific  provision  for  raising  money  to  meet 
such  a  liability,  as  is  here  claimed,  is  immaterial.  It  cannot  afl^ect  the 
plaintiff's  right  to  a  judgment.  The  liability  of  the  log  owners  to  be 
assessed,  and  its  limits,  are  fixed  by  law,  as  also  the  purposes  to  which 
such  assessments  maj'  be  applied.  Any  recover}-  against  the  defendant 
will  not  change  that  law  in  the  slightest  degree.  No  assessment  here- 
after made  can  be  increased  to  meet  any  contingency  not  contemplated 
b}'  the  charter,  and  if  the  plaintiff,  after  having  obtained  judgment,  is 
unable  to  find  means  wherewith  to  satisfy  it  in  accordance  with  the  law, 
he  will  simpl}'  be  in  the  condition  of  man}'  other  judgment  creditors 
before  him  who  have  paid  largely  for  that  which  affords  them  no  benefit. 

It  is  further  contended  that  the  action  cannot  be  maintained,  because, 
while  the  defendant  under  its  charter  has  the  right  to  drive  all  the  logs  to 
be  driven,  the  obligation  to  do  so  is  not  imposed  upon  it.  In  other 
words,  by  the  provision  of  the  charter,  it  is  left  optional  with  the  com- 
pany to  drive  such  as  it  may  choose  to  do. 

The  language  is,  "  and  said  company  may  drive  all  logs  and  other 
timber  that  may  be  in  the  west  branch  of  the  Penobscoi  river,"  &c., 
and  it  is  contended  that  the  word  "may"  must  be  construed  as  permis- 
sive and  not  as  imperative.  If  any  argument  were  needed  to  show  that 
such  is  its  proper  construction,  it  would  seem  that  the  able  and  exhaus- 
tive discussion  of  this  point  by  the  counsel,  would  leave  no  room  for 
doubt.  The  charter  was  granted  as  a  privilege  and  not  for  the  purpose 
of  imposing  an  obligation,  and  when  granted  it  has  no  binding  effect 
until  accepted  by  those  for  whom  it  was  intended.  But  when  accepted 
it  becomes  of  binding  force  and  must  be  taken  with  all  its  conditions 
and  burdens,  as  well  as  its  privileges.  It  cannot  be  accepted  in  part, 
but  must  be  taken  as  a  whole. 

In  this  case  tlie  charter  conferred  the  privilege  of  driving,  not  a  part, 
not  such  a  portion  as  the  company  might  choose,  but  "all"  the  logs  to 
be  driven.  This  right  having  been  accepted  by  the  company,  it  became 
a  vested  and  also  an  exclusive  right.     It  is  therefore  taken  not  only 


30      BRUSH  ELECTRIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO. 

from  all  other  corporations,  but  excludes  the  owner  as  well.  If  this 
exclusion  was  beyond  the  power  of  the  legislature,  it  is  not  for  this  de- 
fendant to  complain,  for  the  right  has  been  given  to  and  accepted  by  it. 
By  its  acceptance  and  exclusion  of  tlie  owner  from  the  privilege,  in 
justice  and  in  law  it  assumed  an  obligation  corresponding  to,  and  com- 
mensurate with  its  privilege.  It  accepted  the  right  to  drive  all  the  hjgs, 
and  that  acceptance  was  an  undertaking  to  drive  them  all,  or  to  use 
reasonable  skill  and  diligence  to  accomplish  that  object.  This  duty  is 
not  one  imposed  by  the  charter,  certainly  not  by  that  alone,  but  is  the 
result  of  the  defendant's  own  act;  it  is  its  own  undertaking  ;  virtually 
a  contract  on  its  part,  to  accomplish  that  which  it  was  authorized  to  do. 

Motion  and  exceptions  overruled.^ 


BRUSH  ELECTRIC  ILLUMINATING  CO.  v.   CONSOLIDATED 
TELEGRAPH  AND  ELECTRICAL  SUBWAY  CO. 

Supreme  Court,  New  York,  1891. 
[15  N.  Y.  S.  8L] 

Action  by  the  Brush  Electric  Illuminating  Company  against  the 
Consolidated  Telegraph  and  Electrical  Subway-  Company.  Plaintiff 
moves  for  an  injunction. 

Ingraham,  J.  The  judgment  demanded  bj'  plaintiff  in  this  action  is 
that  the  defendant,  its  officers,  agents,  and  servants,  and  all  others 
having  notice,  be  perpetually  enjoined  and  restrained  .from  removing, 
cutting  out,  or  in  any  manner  whatsoever  interfering  with  the  cables 
and  conductors  or  the  property  of  the  plaintiff,  and  from  interfering 
with  the  plaintiff,  or  its  officers,  agents,  and  servants,  in  operating  or 
maintaining  the  said  cables  and  conductors,  and  in  having  access  to 
them  or  any  of  the  plaintiff's  property  in  the  subwa3-s  of  the  defendant, 
or  elsewhere,  and  that  this  court  determine  and  adjudge  what  would  be 
a  just  and  reasonable  rental  for  the  use  of  the  ducts  and  subways  by 
the  plaintiff  and  the  terms  upon  which  such  rentals  must  be  paid,  and 
that  defendant  be  enjoined  from  committing  an}'  of  said  acts  during 
tlie  pendenc}'  of  the  action.  An  inspection  of  the  complaint  shows 
that  the  theory  upon  which  the  plaintiff  brought  the  action  was  that  in 
some  wa}'  this  court  had  power  to  fix  what,  in  its  judgment,  would  be  a 
reasonable  rental  for  the  plaintiff  to  pay  for  the  use  of  the  ducts  occu- 
pied by  it.  It  seems  to  me  clear  that  this  court  has  no  sucii  power  to  fix 
or  determine  what  rental  plaintiff  should  pay,  or  what  would  be  a  rea- 
sonable compensation  to  be  paid  by  plaintiff,  for  its  use  of  the  subway's. 
The  defendant  has  constructed  these  subways  in  pursuance  of  two  con- 
tracts, known  as  the  contracts  of  July,  188G,  and  of  April,  1887.    The 

I  Compare :  Manu  v.  Log  Co.,  46  Mich.  38.  —  Ed. 


BRUSH  ELECTRIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO.      31 

contract  of  April,  1887,  was,  in  terms,  a  modification  of  the  contract 
of  1886,  and  under  its  provisions  tlie  defendants  were  authorized  to 
build,  equip,  maintain,  and  operate  tlie  subways  in  the  contract  men- 
tioned and  referred  to.  The  defendant,  by  the  contract,  agreed  that 
spaces  in  saitl  subways  shall  be  leased  by  the  parties  of  tlie  first  part 
(the  board  of  electrical  subways)  to  any  company  or  corporation  having 
lawful  power  to  operate  electrical  subways  in  the  streets  in  the  cily  of 
New  York  that  may  apply  for  the  same.  It  does  not  appear,  however, 
that  the  board  have  ever  acted  under  this  authority.  The  contract, 
however,  further  provides  that  the  party  of  the  second  part  (this  defend- 
ant) may  fix  a  fair  scale  of  rent  to  be  charged,  but  the  scale  of  rents 
or  any  charges  fixed  or  made  b}-  defendant  shall  at  all  times  be  subject 
to  the  control,  modification,  and  revision  by  the  board  of  electrical  con- 
trol, and  that  no  contract  shall  be  made  between  the  party  of  the 
second  part  (the  defendant)  and  any  company  or  corporation  on  any 
terms  which  shall  not  require  the  pa3'ment  b}-  such  other  companies  or 
corporations  of  rents  at  the  rates  so  fixed.  This  contract  was  express!}' 
ratified  by  chapter  716,  Laws,  1887,  and  it  must  control  the  right  of  the 
defendant  to  the  use  of  the  subways  constructed  by  the  defendant.  It 
will  be  seen  that  the  provisions  of  this  contract  gave  to  the  defendant 
in  the  first  instance  the  authorit}'  to  fix  a  uniform  rate  to  be  paid  by  all 
l)ersons  occupying  its  subways.  That  rate  must  be  a  fair  one,  but  the 
cori)oration  is  to  say,  in  the  first  instance,  what  is  a  fair  charge  for  the 
use  of  the  subway  ;  and  it  is  clear  that  until  the  rate  fixed  is  modified 
by  the  board  of  electrical  control,  who  are  the  successors  of  the  com- 
missioners of  the  electrical  subways,  the  rate  so  fixed  must  be  paid  by 
all  persons  using  the  subway's.  It  is  thus  left  to  the  commissioners  to 
determine  whether  or  not  the  rate  fixed  bs"  the  defendant  is  a  fair  and 
reasonable  rate,  and  this  court  is  given  no  power  to  review  the  exercise 
of  that  discretion  ;  and  since  the  commencement  of  this  action  the 
board  of  electrical  control  has  passed  upon  the  question,  and  fixed  the 
rent  that  the  plaintiflT  is  to  pay  for  the  use  of  the  subways.  I  think, 
therefore,  that  the  court  cannot  determine  what  would  be  a  just  and 
reasonable  rental  for  the  use  of  the  subwa3'S  by  plaintiflf.  Nothing  in 
section  7  of  the  act  of  1887  would  justify  the  court  in  reviewing  the 
action  of  the  board  of  electrical  control,  for  it  was  the  evident  intent 
of  that  section  to  give  to  the  court  power  by  mandamus  to  compel  the 
defendant  to  corapl}'  with  its  contract,  and  furnish  just  and  equal  facili- 
ties to  corporations  applying  for  the  use  of  the  subways,  not  to  fix  the 
rent  that  was  to  be  paid,  which  was,  b}-  the  express  terms  of  the  con- 
tract, to  be  fixed  by  defendant,  subject  to  the  review  of  the  board,  and 
the  rate  thus  fixed  must  be  paid  by  each  corporation  using  the  subways. 
Nor  do  I  think  that  the  plaintiff  would  be  entitled  to  an  injunction 
restraining  the  defendant  from  removing,  cutting  out,  or  in  any  manner 
mterfering  with  the  cables  and  conductors  of  the  plaintiff.  The  exact 
relation  that  exists  between  plaintiff  and  defendant  is  not  eas}-  to  deter- 
mine.    The  defendant  being  the  owner  of  these  subways,  or  ducts, 


32      BRUSH  ELECTRIC,  ETC.  CO.  V.  CON.SOLIDATED,  ETC.  SUBWAY  CO. 

built  Milder  the  surface  of  the  streets  in  the  city  of  New  York,  the 
plaiutiff  being  desirous  of  using  such  subways  for  its  wires  or  cables 
with  which  lo  supply  electricity  to  its  customers,  presented  to  the  de- 
fendant an  instrument  in  writing  whereby  ai)plicatiun  was  made  for 
space  in  the  electrical  subway  (specifying  the  street  or  avenue)  for  the 
term  of  one  year,  to  be  used  for  electrical  light  anif  power  purposes. 
In  some  of  these  applications  the  rate  or  rental  was  fixed  at  Si, 000  per 
duct  per  mile  per  annum;  in  other  applications  the  amount  of  rent  was 
not  mentioned.  The  rates  fixed  b}"  defendant  had,  however,  been  com- 
municated to  the  plaintiff  prior  to  making  of  the  api)lications  in  ques- 
tion. No  agr(;ement  or  contract  of  any  kind  appears  to  have  been 
signed  by  defendant,  nor  did  it  agree  to  allow  the  plaintiff  to  continue 
to  use  the  duet  or  subway  for  any  specified  terra.  At  most  it  was  an 
acceptance  of  the  application,  and  a  verbal  permission  to  use  the  duct 
for  the  purpose  mentioned.  So  far  as  the  plaintiff  can  claim  under  any 
grant  or  contract  made  by  defendant,  this  would  constitute  a  mere 
license  to  the  plaintiff  to  use  the  subway  or  duct  for  the  period  men- 
tioned. By  such  license  the  plaintiff  acquired  no  interest  in  the  sub- 
wav,  and,  under  the  contractual  relations  betvveen  the  parties,  the 
defendant  was,  I  think,  entitled  to  revoke  the  license  at  any  time,  and 
upon  the  revocation  of  the  license  all  rights  of  the  plaintiff  in  the  sub- 
way ceased.  The  distinction  between  a  license  and  an  easement  is 
stated  in  Wiseman  v.  Lucksinger,  84  N.  Y.  42,  and  I  think,  under  the 
rule  there  laid  down,  this  permission  to  use  these  ducts  could  be  nothing 
more  than  a  license,  and  revokable  at  the  pleasure  of  the  licensor. 

The  plaintiff,  however,  claims  that  the  defendant  is  a  quasi  public 
cori)oration,  and  has  only  such  rights  as  are  given  to  it  b}'  charter,  and, 
as  it  is  nowhere  expressly  given  the  right  to  withdraw  the  plaintiff's 
wires  from  its  ducts,  when  they  are  once  there  it  must  allow  them  to 
remain  there  forever;  and  the  onlv  remedy  that  the  defendant  has 
against  the  plaintiff,  or  anv  one  using  its  ducts,  is  an  action  at  law  for 
the  recover}'  of  the  rent  reserved.  It  has  been  held,  however,  that 
this  principle  has  reference  to  remedies  qv  processes  of  a  judicial  nature 
only,  and  does  not  affect  the  right  of  a  person  to  do  such  material  acts 
as  are  necessary  to  protect  his  rights.  Jordan,  etc.  Co.  v.  Morley,  23 
N.  Y.  554^.  But  the  statutes  and  contracts  in  question  conferred  upon 
defendant  no  remedy  in  case  of  the  refusal  of  a  person  using  its  sub- 
ways to  pay  the  rate  fixed,  and  I  can  see  no  reason  why  it  should  not 
have  the  same  rights  that  any  other  person  would  have  under  simi- 
lar circumstances.  It  seems  to  me,  liowever,  that  this  position 
arises  out  of  a  misconception  of  the  defendant's  real  position.  The 
defendant  is  not  a  common  carrier,  nor  has  it  received  from  the  State 
a  franchise  such  as  is  conferred  upon  a  ferrv  company  or  a  turnpike 
road.  Defendant,  it  is  true,  obtained  permission  from  the  public 
authorities  to  build  these  suliways  in  the  public  streets,  and  it  has  bound 
itself  b}'  contract  to  furnish  to  such  corporations  or  individuals  as  have 
authorit}"  to  use  the  public  streets  for  electrical  purposes  the  use  of  iis 


BRUSH  ELECTRIC,  ETC.  CO.  V.  CONSOLIDATED,  ETC.  SUBWAY  CO.      33 

subwaj-s,  but  such  obligation  rests  entirel}-  upon  its  contract  under 
whicti  it  received  its  authority  to  build  its  subways.  Irrespective  of 
that  contract,  and  section  7  of  the  Acts  of  1887,  the  plaintiff  would 
have  no  right,  against  the  will  of  the  defendant,  to  use  its  subways, 
nor  would  the  public  autliorities,  nor  the  courts,  have  power  to  compel 
the  defendant  to  give  any  rights  to  the  plaintiff.  Whatever  right,  there- 
fore, tiie  plaintiff  acquired,  it  is  under  the  contract  under  which  the 
defendant  had  authority  to  build  the  subways,  and  the  statutes  under 
which  such  contract  was  made,  and  there  can  be  nothing  found  in  these 
statutes  or  contract  tliat  would  justify  the  claim  of  the  plaintiff.  On 
the  contrar}',  the  utmost  care  is  taken  to  provide  for  the  paj'ment  of 
compensation  to  the  defendant  for  the  use  of  the  subways,  and  defend- 
ant is  expressl}'  prevented  from  giving  any  one  the  right  to  use  them, 
except  upon  the  payment  of  the  rate  fixed ;  and  to  say  that  a  corpora- 
tion getting  permission  to  use  the  subwa\'s  upon  an  agreement  to  pay 
the  rate  fixed  for  its  use,  under  the  provisions  of  the  statute,  could,  by 
simply  refusing  to  pay,  defeat  the  express  provisions  of  the  contract  by 
using  the  subwa}'  without  paying  for  it  the  rate  fixed  or  paying  a  less 
rate,  would  subvert  the  whole  scheme  under  which  the  subwaj's  have 
been  built. 

The  conduct  of  the  plaintifE  has  not  been  such  as  to  commend  it  to 
the  favorable  consideration  of  a  court  of  equity.  Although  well  know- 
ing the  rates  fixed  by  defendant  for  the  use  of  its  subways,  and  where 
in  the  application  the  amount  of  rent  is  stated,  no  application  was  made 
to  the  board  of  electrical  control  to  review  the  action  of  the  defend- 
ant in  fixing  the  rent,  nor  did  the  plaintiff  pa}'  or  tender  to  the  defendant 
any  sum  as  compensation  for  the  use  of  the  subway  bv  it.  It  simply 
held  on  to  the  subway,  paying  nothing  for  its  use  until  the  defendant 
threatened  to  revoke  the  permission  given  to  use  the  subway,  and  then, 
without  paying  or  offering  to  pay  to  the  defendant  anything,  it  applies 
to  the  court  for  an  injunction,  under  which  it  could  continue  to  use  the 
subways  indefinitely,  without  paying  anything  for  the  right  it  enjoys. 
Under  such  circumstances,  it  would  require  a  clear  case,  and  one  free 
from  doubt,  to  justify  the  interference  of  the  court.  I  have  examined 
carefully  the  elaborate  arguments  submitted  on  behalf  of  the  plaintiff, 
and,  while  it  has  been  impracticable  to  notice  all  of  the  points  made,  I 
have  come  to  the  conclusion  that  upon  no  ground  can  the  plaintiff  be 
entitled  to  any  relief  in  this  action.  The  motion  for  injunction  must 
therefore  be  denied,  and  temporary  injunction  vacated. 


HAUGEN   V.   ALBINA  LIGHT   AND   WATER   CO. 


HAUGEN   V.  ALBINA   LIGHT   AND   WATER  CO. 

Supreme  Court  of  Oregon,  1891. 

[21  Ore.  411.1] 

This  is  an  action  for  a  writ  of  mandamus  to  require  the  defendant 
to  supply  the  plaintiff  with  water  by  tapping  a  certain  water-main  on 
Tillamook  Street,  and  allowing  him  to  connect  a  service-pipe  therewith, 
&c.  The  facts  alleged  in  substance  are  these  :  That  the  defendant  is 
a  corporation,  the  business  of  which,  among  other  things,  is  to  furnish 
the  cit}'  of  Albina,  and  the  inhabitants  thereof,  with  water  ;  that  it  is 
operating  under  a  franchise  granted  to  said  company  by  the  council  of 
the  city  of  Albina,  by  virtue  of  an  ordinance,  as  follows :  "  An  ordi- 
nance granting  the  right  of  wa}"  through  the  streets  for  la3ing  pipes  for 
the  purpose  of  conveying  water  through  the  city.  The  city  of  Albina 
does  ordain  as  follows  :  Section  1.  That  the  Albina  Water  Company, 
its  successors  and  assigns,  be  and  are  hereby  granted  the  right  and 
privilege  of  laying  pipes  through  the  streets  of  the  cit}"  of  Albina,  for 
the  purpose  of  conducting  water  through  the  city.  Section  2.  That 
the  ditches  for  laying  pipes  shall  be  sunk  two  feet,  and  the  pipes  for 
conducting  the  wajer  shall  be  under  the  surface  or  level  of  the  estab- 
lished grade  eighteen  to  twenty  inches  on  all  improved  streets,  and  no 
pipe  shall  be  laid  so  as  to  interfere  with  the  construction  of  sewers  ;  pro- 
vided, that  nothing  in  this  ordinance  shall  be  construed  so  as  to  grant 
an}'  exclusive  right  or  privilege  of  conducting  water  into  the  city  ;  pro- 
vided further,  that  said  water  compan}'  shall  in  no  case  charge  more 
than  one  dollar  per  month  for  the  first  faucet  and  fifty  cents  for  each 
additional  faucet  in  the  same  building,  for  famil}'  use  or  at  a  private 
dwelling  house,"  &c.  That  the  purpose  and  object  of  granting  to  said 
company  the  right  to  la}'  water-mains  in  the  streets  of  said  city,  was  that 
the  citizens  of  said  city  might  be  furnished  with  a  supply  of  pure  and 
wholesome  water ;  that  by  virtue  of  the  authority  conferred  by  said 
ordinance,  the  defendant  laid  down  a  four-inch  water-main  in  and 
through  Tillamook  Street  in  the  then  cit}-  of  Albina,  from  the  east  line 
of  the  original  townsite  of  the  city  of  Albina,  to  the  west  line  of 
Twenty-fourth  Street  in  Irvington,  and  connected  the  said  main  with 
the  main  on  Margaretta  Avenue  in  said  city,  and  for  nearly  a  year  past 
has  been  pumping  water  and  conducting  it  through  said  main  on  Tilla- 
mook Street  to  supply  the  citizens  of  Irvington  residing  east  of  Four- 
teenth Street ;  that  the  defendant  utterly  refuses  to  allow  persons 
residing  on  Tillamook  Street  between  the  east  line  of  the  original  town- 
site  of  Albina  and  Fourteenth  Street  in  Irvington,  to  tap  said  main,  and 
refuses  to  supply  them  with  water  therefrom  ;  that  the  plaintiff  resided 
on  Tillamook  Street  between  the  points  above  named,  and  is  the  owner 

1  This  case  is  abridged.  —  Ed. 


HAUGEN   V.    ALBIXA   LIGHT   AND   WATER   CO.  35 

of  lot  2,  block  126,  of  Irvington;  that  said  lot  abuts  on  said  Tillamook 
Street,  and  the  plaintiff  is  constructing  a  dwelling  thereon,  and  is  desir- 
ous of  securing  a  supply  of  water  from  the  water-mains  of  said  street, 
that  being  the  only  source  of  water  supply  for  said  premises  ;  that  the 
plaintiff  has  repeatedly  requested  the  defendant  to  supply  him  with 
water  from  said  main,  but  has  always  been  refused ;  that  on  the 
eleventh  da}'  of  July  the  plaintiff  tendered  said  defendant  two  dollars 
and  fifty  cents,  the  regular  fee  charged  by  the  defendant  for  tapping  a 
water-main  with  a  service  pipe,  and  demanded  from  the  defendant  to 
be  connected  with  said  water-main  in  Tillamook  Street,  and  to  be  sup- 
plied therefrom  with  water,  and  that  said  defendant  refused  to  accept 
said  tender,  and  refused  to  connect  the  plaintiff's  premises  with  said 
main,  and  refused  to  suppl}'  him  with  water  therefrom  ;  that  said  re- 
fusal is  wilful,  and  is  done  for  the  avowed  purpose  of  debarring  the 
residents  on  said  Tillamook  Street,  between  the  original  townsite  of 
Albina  and  Fourteenth  Street,  and  particularly  the  plaintiff,  from  the 
use  of  water  from  said  main ;  that  the  plaintiff  is  without  any  legal 
remedy  in  the  premises  except  the  writ  of  mandamus,  etc. 

Lord,  J.  From  this  statement  of  the  case,  as  presented  b}-  the 
pleadings,  the  court  below  held  that  when  the  defendant  entered  upon, 
and  laid  down  its  water-mains  in  the  street,  in  pursuance  of  the  privi- 
lege granted  by  the  ordinance,  it  became  bound  to  supply  every  abutter 
upon  the  street  with  water. 

The  contention  for  the  defendant  is,  that  the  ordinance  does  not  im- 
pose the  duty  upon  it  to  furnish  water,  but  only  if  it  shall  furnish  water, 
that  the  charge  therefor  shall  not  exceed  a  certain  sum  therein  speci- 
fied ;  that  the  grant  is  to  lay  pipes  through  the  streets,  for  the  purpose 
of  conducting  water  through  the  city  in  the  mode  prescribed,  and  so  as 
not  to  interfere  with  the  construction  of  sewers,  but  that  it  contains 
no  provision  requiring  it  to  supply  the  city  or  its  inhabitants  with  water, 
hence  the  ordinance  imposes  no  duty  upon  the  company  to  furnish 
water  to  any  one. 

In  whatever  form  the  argument  is  presented,  it  rests  essentially  upon 
this  contention.  While  admitting  that  it  is  a  corporation  organized  to 
supply  the  cit}'  and  its  inhabitants  with  water,  and  that  the  city  by  its 
ordinance  granted  it  the  right  to  la}'  water-mains  through  its  streets  for 
the  purpose  of  carrying  into  effect  the  objects  of  its  incorporation,  it 
insists  that  the  ordinance  is  the  measure  of  the  rights  conferred  and  the 
obligation  imposed,  which,  by  its  terms,  only  grants  "  the  right  and 
privilege  of  laying  pipes  through  the  streets  of  the  city  of  Albina  for 
the  purpose  of  conducting  water  through  the  cit}',"  under  the  condi- 
tions imposed,  without  "  a  word  in  the  language  of  the  grant  from 
which  it  could  be  inferred  that  the  company  is  placed  under  any  obliga- 
tion whatever  to  supply  any  inhabitant  of  the  city  with  water."  .  .  . 

It  must  then  be  conceded  that  the  defendant  is  engaged  in  a  business 
of  a  public  and  not  of  a  private  nature,  like  that  of  ordinary  corpora- 
tions engaged  in  the  manufacture  of  articles  for  sale,  and  that  the  right 


36  HAUGEN    V.    ALBINA   LIGHT    AND    WATER    CO. 

to  dig  up  the  streets,  and  place  therein  pipes  or  mains  for  the  purpose 
of  conducting  water  for  the  suppl}'  of  the  city  and  its  inhabitants,  ac- 
cording to  the  express  purpose  of  its  incorporation,  and  the  business  in 
which  it  is  engaged,  is  a  franchise,  the  exercise  of  which  could  only  be 
granted  by  the  State,  or  the  municipality  acting  under  legislative  au- 
thority. In  such  case,  how  can  the  defendant,  upon  the  tender  of  the 
proper  compensation,  refuse  to  supply  water  witliout  distinction  to  one 
and  all  whose  propert}'  abuts  upon  the  street  in  which  its  pipes  are 
laid  ?  The  defendant  company  was  organized  to  supply  water  to  the 
city  and  its  inhabitants,  and  the  franchise  granted  by  the  city  authori- 
ties was  the  means  necessary  to  enable  it  to  effect  that  purpose.  AVith- 
out  the  franchise,  the  object  for  which  the  company  was  incorporated 
would  fail  and  come  to  naught.  It  could  not  carry  on  the  business  of 
supplying  the  city  and  its  inhabitants  with  water  without  authority  from 
the  city  to  dig  its  streets  and  laj'  pipes  therein  for  conducting  or  dis- 
tributing water  for  public  and  private  use.  It  was  not  organized  to  lay 
pipes,  but  to  supply  water,  and  the  grant  was  to  enable  it  to  do  so 
and  thereby  effect  the  public  purpose  contemplated. 

"When  the  defendant  incorporated  to  carry  on  such  a  business,  we 
may  reasonably  assume  that  it  was  with  the  expectation  of  receiving  a 
franchise  from  the  city,  which,  when  conferred,  it  would  undertake  to 
carry  on  according  to  the  purposes  for  which  it  was  organized.  By  its 
acceptance  of  the  grant,  under  the  terms  of  its  incorporation,  it  as- 
sumed the  obligation  of  supph'ing  the  cit}'  and  its  inhabitants  with 
water  along  the  line  of  its  mains.  It  could  not  dig  up  the  streets  and 
lav  pipes  therein  for  conducting  water,  except  to  furnish  the  city  and  its 
inhabitants  with  water.  That  was  the  purpose  for  which  it  became  a 
corporation,  and  the  grant  of  the  city  was  to  enable  it  to  carry  it  into 
effect.  And  "  if  the  supplying  of  a  city  or  town  with  water,"  as  Van 
Syckel,  J.,  said,  "  is  not  a  public  purpose,  it  is  difficult  to  conceive  of 
any  enterprise  intrusted  to  a  private  corporation  that  could  be  classed 
tinder  that  head." 

We  discover  no  error,  and  the  judgment  must  be  affirmed  for  the 
plaintiff,  making  the  writ  peremptory.^ 

^  Compare:  Water  Works  v.  Schottler,  110  U.  S.  354;  Water  Co.  v.  Fergus,  178 
111.  571  ;  Olmstead  v.  Morris  Aqueduct,  47  N.  J.  L.  311 ;  People  v.  Water  Co.,  56  Hun, 
76  ;  Griffin  v.  Water  Co.,  122  N.  C.  206.  —  Ed. 


SLOSSER   V.   SALT   EIVER  VALLEY   CANAL   CO.  37 

SLOSSER  V.  SALT  RIVER  VALLEY  CANAL  CO. 
Supreme  Court  of  Arizona,  1901. 

[65  Pac.   Rep.  332.1] 

Sloan,  J.  .  .  .  The  proof  shows  that  plaintiff  and  his  grantors  have 
cultivated  the  land  whicli  he  now  owns  from  1871  to  1880,  under  vari- 
ous canals  in  which  plaintiff  and  his  grantors  were  the  owners  of  water 
rights.  Since  1880,  with  the  exception  of  one  or  two  j-ears,  whatever 
water  plaintiff  has  had  for  the  irrigation  of  his  land  has  been  obtained 
from  the  Salt  River  Valley  canal.  The  circumstances  under  which 
plaintiff  changed  his  use  from  the  Farmers'  canal  to  the  Salt  River 
Valley  canal  are  shown  to  have  been  the  difficulty  of  maintaining  the 
Farmers'  canal,  and  the  scarcity  of  water  at  its  head,  due  to  the  diver- 
sion by  the  defendant  company  and  other  companies  owning  canals 
which  headed  further  up  the  river.  It  is  contended  b}'  the  defendant 
that  the  abandonment  of  the  Farmers'  canal  b}'  its  water-right  holders, 
including  the  plaintiff,  operated  as  an  abandonment  of  their  appropria- 
tions of  water.  Whatever  may  be  the  status  of  other  water-right 
holders  in  the  Farmers'  canal,  the  defendant  compan}-,  as  late  as 
1890,  in  the  suit  known  as  "  Wormser  against  the  Salt  River  Valley 
Canal  Company-,"  tried  in  the  court  below,  which  case  involved  the 
rights  of  various  canals  in  the  Salt  River  Valley  to  divert  the  water 
from  Salt  River,  acknowledged  plaintiff's  right  as  an  appropriator  of 
water,  by  setting  up  such  right,  introducing  proof  to  the  same,  and 
detaining  an  adjudication  in  its  favor,  sustaining  its  right  to  divert 
and  carrj'  water  necessarv  for  the  irrigation  of  plaintiff's  lands.  If 
plaintiff  had  not  lost  his  right  as  an  appropriator  of  water  by  obtaining 
water  from  the  Salt  River  canal  from  1880  to  1890,  it  cannot  be  very 
well  contended  that  under  the  same  circumstances  his  right  was  lost  to 
him  between  1890  and  1896,  when  he  was  first  denied  the  right  of  ob- 
taining water  from  the  defendant's  canal.  Forfeitures  are  not  favored 
in  law,  and  we  hold,  therefore,  that  the  circumstances  under  which  plain- 
tiff ceased  to  obtain  water  from  the  Farmers'  canal,  and  his  use  of  water 
from  the  defendant's  canal,  coupled  with  the  acknowledgment  as  late 
as  1890  by  the  defendant  company  of  his  right  as  an  appropriator,  do 
not  show  such  forfeiture,  but,  on  the  contrary,  establish  his  status  as  a 
valid  appropriator  of  water  from  the  Salt  River.  We  do  not  hold  that 
the  plaintiff  has  acquired  any  contractual  right  to  the  service  of  said 
company  which  would  entitle  him  to  compel  from  said  company-  the 
deliver}'  of  water  for  the  irrigation  of  his  lands,  by  virtue  of  such 
contractual  relation,  whenever  the  company  confines  its  diversion  and 
delivery  of  water  to  its  stockholders  to  be  used  by  the  latter  upon  lauds 

1  This  case  is  abridged.  —  Ed. 


38  SLOSSER   V.   SALT   RIVER   VALLEY   CANAL  CO. 

owned  or  possessed  by  them.  On  the  other  hand,  we  hold  that  his 
rights  in  the  premises,  so  far  as  the  defendant  company  is  concerned, 
rest  upon  the  fact  that  the  defendant  was  not,  at  the  time  of  plaintiffs 
application  for  water,  confining  its  service  to  supplying  its  water-right 
holders  for  the  irrigation  of  lands  which  they  owned  or  possessed.  In 
determining,  however,  whether  plaintiff,  as  against  others  similarl}' 
situated,  so  far  as  the  company  is  concerned,  was  entitled  to  the  service 
of  the  compan}-,  under  the  law  of  prior  appropriation,  and  the  duty  of 
water  companies  which  occupy  the  relation  of  public  agency  in  the 
diversion  and  carriage  of  water,  we  must  look  to  the  date  of  his  ap- 
propriation, and  therefore  his  priority  of  right.  We  think  the  denial 
b}'  the  defendant  of  plaintiff's  application,  under  the  circumstances 
shown  b}'  the  record,  was  unwarranted,  and  he  should  have  been  ac- 
corded this  right  in  preference  to  the  holders  of  leases  from  the  share- 
holders for  use  upon  lands  not  owned  or  possessed  by  said  shareholders, 
who  were  subsequent  appropriators. 

The  importance  of  the  questions  presented  b}'  the  record  is  such  that 
we  feel  called  upon  to  define  with  certainty  the  position  we  have  taken, 
and  to  this  end  to  give  a  brief  resume  of  the  points  decided,  with  a 
statement  of  those  which  w^e  do  not  decide,  which  grow  out  of  a  con- 
sideration of  the  points  decided  in  a  collateral  way,  although  not  neces- 
sary in  arriving  at  the  result  reached  :  We  hold  that  the  ownership 
and  possession  of  arable  and  irrigable  land  are  essential,  under  the 
statutes,  for  the  acquisition  of  the  right  of  appropriation  of  water  from 
a  public  stream  for  purposes  of  irrigation.  We  hold  that  a  corpora- 
tion not  the  owner  or  possessor  of  arable  and  irrigable  land  maj-  law- 
full}'  construct  a  dam,  canal,  or  other  conduit  of  water,  and  divert  from 
such  stream  water  for  purposes  of  irrigation,  but  that  in  so  doing  it 
becomes  in  no  sense  an  appropriator  or  ow^ner  of  the  water  so  diverted. 
Its  status  is  that  of  either  a  private  or  public  agency,  depending  upon 
whether  its  diversion  is  for  the  purpose  of  supplying  owners  or  posses- 
sors of  arable  and  irrigable  land  with  whom  it  has  fixed  contractual 
relations,  binding  it  to  perform  such  service,  or  whether  its  purpose  or 
practice  be  to  supply  owners  or  possessors  of  such  land  who  are  not  its 
water-right  holders,  or  with  whom  it  has  not  bound  itself  b}'  contract  to 
permanently  render  such  service.  If  it  confines  its  service  as  the  pri- 
vate agent  of  certain  appropriators,  it  cannot  be  compelled  to  render  ser- 
vice to  others.  On  the  other  hand,  if  it  undertakes  to  and  does  divert 
and  carry  water  for  the  use  of  consumers  with  whom  it  is  not  bound 
by  such  contracts,  and  hence  becomes  a  public  agency,  it  cannot,  under 
the  law,  discriminate  by  giving  preference  otherwise  than  with  due  re- 
gard to  priority  of  appropriation.  We  further  hold  that  a  shareholder 
in  such  a  company,  who  is  also  a  water-right  holder  by  virtue  of  his 
ownership  of  such  share  of  stock  and  the  ownership  or  possession  of 
arable  and  irrigable  land  irrigated  b}-  means  of  such  water  right,  may 
notNassign  such  water  right  to  another,  to  be  used  upon  lands  which  the 
assignor  does  not  own  or  possess,  for  any  particular  season,  so  as  to 


SLOSSEK   V.   SALT   EIVER   VALLEY   CANAL   CO.  39 

confer  upon  the  assignee  bis  priority  of  right,  and  that  such  company 
does  not  possess  the  right  to  discriminate  in  favor  of  such  holders,  as 
against  other  appropriators  of  water  under  its  canal,  who  were  prior 
in  right.  In  other  words,  a  water  right,  to  be  effective,  must  be  at- 
tached to  and  pertain  to  a  particular  tract  of  land,  and  is  in  no  sense  a 
"  floating  "  right.  We  do  not  wish  to  be  understood  as  holding  that  a 
water  right  which  is  so  attached  becomes  inseparable  from  such  land. 
That  is  to  say,  we  do  not  hold  that  a  prior  appropriator  of  water  may 
not  convey  his  prior  appropriation  to  another,  without  the  land,  so  as 
to  confer  upon  his  vendee  of  such  water  right  all  the  rights  which  the 
vendor  may  possess,  provided  such  vendee  makes  a  beneficial  use  of 
such  water  right  upon  lands  which  he  owns  or  possesses.  But  we  de- 
sire tq  be  understood  simpl}'  as  holding  that,  so  long  as  a  water  right 
is  attached  to  a  particular  piece  of  land,  it  cannot  be  made  to  do  duty 
to  such  land,  and  as  well  to  other  land  not  owned  or  possessed  by  such 
water-right  holder,  at  the  will  or  option  of  the  latter.  In  the  briefs,  as 
well  as  in  the  very  able  and  elaborate  argument  made  by  counsel  for  ap- 
pellee, the  right  of  shareholders  to  do  this,  and  the  duty  of  the  defend- 
ant company  to  recognize  the  right,  have  been  strenuously  argued.  la 
this,  however,  we  think  counsel  confuses  the  right  of  an  appropriator 
to  sell  or  transfer  by  conveyance  his  water  rights  to  another  with  the 
assumed  right  in  question.  To  recognize  the  right  of  a  prior  appro- 
priator to  lease  his  water  right  independent  of  his  land  would,  as  we 
conceive,  be  subversive  of  the  underlining  principle  of  our  water-right 
law.  The  right  of  alienation  of  a  water  right  is  one  which  is  based 
upon  the  general  right  of  propert}-,  and  arises  out  of  the  necessity,  in 
order  that  injustice  ma}'  not  be  done  to  the  owner,  of  permitting  such 
alienation,  for  the  reason  that  it  frequently  happens,  through  no  fault 
of  the  owner,  and  by  the  operation  of  natural  laws,  that  land  to  which 
water  rights  have  been  attached  becomes  unsuitable  for  cultivation. 
Floods  frequently  wash  away  and  destroy  farming  lands,  or  leave  de- 
posits of  coarse  gravel  and  bowlders  upon  them  ;  and  other  natural 
causes  frequently  render  such  lands  not  only  unprofitable,  but  impos- 
sible of  irrigation  and  cultivation.  Natural  justice,  therefore,  is  sub- 
served by  recognizing  the  right  of  a  water-right  holder  to  change  his 
appropriation,  under  such  circumstances,  to  lands  capable  of  profitable 
cultivation,  or  to  sell  his  right  to  another,  to  be  used  by  the  latter  for  a 
beneficial  use  recognized  b}-  the  statute.  As  the  law  must  be  certain 
and  general  in  the  matter  of  the  right  of  conve3-ances,  to  admit  the 
right  of  alienation  under  some  circumstances  must  be  the  admission 
of  that  right  under  an}'  and  all  circumstances.  There  was  no  principle 
of  natural  justice  or  of  necessity  that  required  the  recognition  of  the 
right  of  a  water-right  holder  to  lease  his  water  right  for  particular  sea- 
sons, while  retaining  the  land  to  which  it  is  attached ;  for  so  long  as 
he  may  use  his  right  in  the  cultivation  of  such  land  he  enjoys  all  that 
the  law  confers  in  the  first  instance  by  virtue  of  his  appropriation.  In 
considering  our  peculiar  statutes,  it  is  well  to  bear  in  mind  the  fact 


40  SLOSSER   V.   SALT   RIVER   VALLEY   CANAL   CO. 

that  the  only  expression  in  our  statutes  upon  the  subject  of  priority  of 
rights  among  appropriators  from  a  common  source  for  agricultural  pur- 
poses is  found  in  paragraph  3215  of  the  Revised  Statutes,  which  reads  : 
"  That  during  years  when  a  scarcity  of  water  shall  exist,  owners  of 
fields  shall  have  precedence  of  the  water  for  irrigation  according  to 
the  dates  of  their  respective  titles  or  their  occupation  of  the  lands 
either  by  themselves  or  their  grantors,  the  oldest  titles  shall  have  pre- 
cedence always."  And,  while  this  section  applies  primarily  to  public 
acequias,  it  is  significant,  taken  in  connection  with  paragraph  3201,  and 
negatives  the  idea  that  priority  of  appropriation  is  a  mere  personal 
right,  which  maj'  be  enjo3ed  otherwise  than  b}'  its  application  upon 
particular  lands.  We  hold  further,  therefore,  that  the  defendant  com- 
pan}-,  by  adopting  and  continuing  the  practice  of  supplying  water  to 
others  than  its  water-right  holders  owning  or  possessing  arable  and 
irrigable  land,  not  being  itself  an  appropriator  of  the  water  carried, 
or  the  owner  thereof,  and  dealing,  as  it  was.  with  public  property-,  be- 
came a  public  agenc}'  to  the  extent  that  plaintiff  at  the  time  he  made 
his  application  for  water,  although  not  a  water-right  holder  of  the  com- 
pany, was  entitled,  upon  the  payment  of  the  charge  for  similar  service 
made  to  other  non-water-right  holders,  whether  holders  of  orders  from 
water-right  holders  or  not,  to  have  delivered  upon  his  lands  water  suf- 
ficient for  the  irrigation  thereof,  in  preference  to  other  non-water-riglit 
holders  whose  appropriations  were  subsequent  in  time,  and  that  he  is 
entitled  to  this  service  upon  the  same  terras  and  conditions,  so  long  as 
the  defendant  company  continues  to  suppl}'  water  to  consumers  under 
its  canal  who  are  not  its  water-right  holders,  whether  upon  the  order 
of  the  latter  or  not,  and  thus  continues  to  assume  the  status  of  a  pub- 
lic agency  in  the  diversion  and  carriage  of  water.  We  do  not  hold 
that  the  water-right  holders  in  the  Salt  River  canal  are  upon  a  parity 
of  right  with  appellant  and  other  non-water-riglit  holders  sirailarl}' 
situated  to  the  service  of  the  canal  and  to  the  water  it  diverts  and  car- 
ries. We  assert  that  the  canal  company  owes  a  first  duty  to  supply 
the  needs  and  requirements  of  the  water-right  holders.  It  is  the  sur- 
plus water  remaining  in  the  canal  after  this  is  done  which  is  lawfully 
available  to  the  latter  class,  and  which  must  be  disposed  of  b}'  the  com- 
pany in  the  manner  herein  decided.  Under  the  circumstances  shown 
b}'  the  record,  we  hold  that  the  appellant  was  wrongfully'  denied  water 
for  the  irrigation  of  his  lands  at  the  time  he  made  his  application,  in 
Ma}',  1899  ;  it  being  shown  that  the  appellee  company  during  that  sea- 
son was  engaged  in  supplying  other  consumers  within  the  flow  of  its 
canal  who  were  non-water-right  holders,  and  thus,  confessedly,  was 
diverting  and  carrying  water  in  its  canal  in  excess  of  that  needed  and 
required  bj'  its  water-right  holders  for  the  irrigation  of  lands  to  which 
their  water  rights  were  attached,  and  it  being  further  shown  that  ap- 
pellant had  the  superior  right  to  the  use  of  such  surplus  water  over 
other  non-water-right  holders  thus  supplied,  bv  virtue  of  his  ownership 
and  possession  of  lands  having  an  older  right  of  appropriation.     We 


PORTLAND   NATURAL   GAS   AND   OIL   CO.   V.   STATE.  41 

further  hold  that,  so  long  as  appellant  continues  to  be  the  owner  or 
possessor  of  said  lands,  upon  paying  the  usual  and  reasonable  charge 
therefor,  he  is  entitled  to  the  same  service,  whenever  and  so  long  as 
the  appellee  company  undertakes  to  and  does  divert  and  carry  in  its 
canal  water  from  Salt  River  in  excess  of  that  needed  and  required  by 
its  water-right  holders  for  the  irrigation  of  lands  owned  or  possessed 
by  such  water-riglit  holders,  and  to  which  such  water  rights  are 
attached.  The  judgment  of  the  trial  court  is  reversed,  and  a  judgment 
and  decree  will  be  entered  in  consonance  with  this  opinion. 

DoAN,  J.,  concurs. 

Davis,  J.     I  do  not  concur  in  the  opinion  of  the  court  in  this  case.^ 


PORTLAND  NATURAL  GAS  AND  OIL  COMPANY  v.  STATE. 
Supreme  Court  of  Indiana,  1893. 

[135  Ind.  54.] 

From  the  Jay  Circuit  Court. 

Coffey,  J.  This  was  an  action  by  the  appellee  against  the  appellant, 
to  compel  the  latter  b}'  mandamus  to  supply  the  residence  of  the  re- 
lator with  natural  gas,  to  be  used  for  lights  and  fuel. 

It  appears,  from  the  complaint,  that  the  appellant  is  a  corporation, 
duly  organized  under  tlie  laws  of  this  State,  for  the  purpose,  among 
others,  of  supplying  to  those  within  its  reach  natural  gas,  to  be  used 
for  lights  and  fuel.  By  permission  of  the  common  council  it  has  laid 
its  pipes,  for  that  purpose,  in  the  streets  and  alleys  of  the  city  of 
Portland,  in  this  State,  and  has  pipes  laid  in  Walnut  Street,  of  that 
city.  Tlie  relator  resides  on  Walnut  Street,  on  the  line  of  one  of  the 
appellant's  main  pipes.  His  house  is  properly  and  safely  plumbed  for 
the  purpose  of  obtaining  natural  gas. 

In  May,  1890,  the  relator  demanded  of  the  appellant  gas  service,  and 
tendered  to  it  the  usual  and  proper  charges  for  such  service,  but  it  re- 
fused, by  its  officers,  to  furnish  the  gas  demanded,  whereupon  this  suit 
was  brought  to  compel  it  to  furnish  the  gas  desired  by  the  relator. 

The  court  overruled  a  demurrer  to  the  complaint.  It  also  sustained 
a  demurrer  to  the  second,  third,  and  fourth  paragraphs  of  the  answer 
filed  by  the  appellant.  Over  a  motion  for  a  new  trial,  the  court 
awarded  a  peremptory  writ  against  the  appellant,  requiring  it  to  fur- 
nish the  relator  with  gas,  as  prayed  in  the  complaint. 

These  several  rulings  are  assigned  as  error. 

Very  many  of  the  objections  urged  against  the  complaint  go  to  the 

1  Compare :  Price  v.  Riverside  Co.,  56  Cal.  431 ;  Wright  v.  Platte  Co.,  27  CoL 
322.  — Ed. 


42  PORTLAND   NATURAL   GAS   AND   OIL   CO.   V.   STATE. 

question  of  its  uncertaint}',  and  are  technical  in  character.  It  has 
been  so  often  decided  that  a  demurrer  is  not  the  remedy  for  uncertainty 
that  we  need  not  cite  authority  upon  the  subject. 

The  vital  question  in  the  case  relates  to  the  right  of  the  relator  to 
compel  the  appellant,  by  mandamus,  to  supply  his  dwelling  house  with 
natural  gas  for  lights  and  fuel. 

There  are  cases  which  hold  that  in  the  absence  of  a  contract,  ex- 
press or  implied,  and  where  the  charter  of  the  company  contains  no 
provision  upon  the  subject,  a  gas  company  is  under  no  more  obligation 
to  continue  to  supply  its  customers  than  the  vendor  of  other  merchan- 
dise, among  which  is  the  case  of  Commonwealth  v.  Lowell  Gas  Light 
Co.,  12  Allen,  75  ;  but  we  think  the  better  reason,  as  well  as  the  weight 
of  authorit}^  is  against  this  holding. 

Mr.  Beach,  in  his  work  on  private  corporations,  volume  2,  section 
835,  says:  "Gas  companies,  being  engaged  in  a  business  of  a  public 
character,  are  charged  with  the  performance  of  public  duties.  Their 
use  of  the  streets,  whose  fee  is  held  by  the  municipal  corporation,  in 
trust  for  the  benefit  of  the  public,  has  been  likened  to  the  exercise  of 
the  power  of  eminent  domain.  Accordinglj',  a  gas  company  is  bound 
to  supply  gas  to  premises  with  which  its  pipes  are  Connected." 

Mr.  Cook,  in  his  work  on  Stock  and  Stockholders,  section  674  (2d 
ed.),  says :  "  Gas  companies,  also,  are  somewhat  public  in  their  nature, 
and  owe  a  duty  to  supply  gas  to  all. " 

To  the  same  effect  are  the  following  adjudicated  cases:  State  v. 
Columbus  Gas,  &c.  Co.,  34  Oh.  St.  572  ;  New  Orleans,  &c,  Co.  v. 
Louisiana  Light  Co.,  115  U.  S.  650;  People,  ex  rel.,  v.  Manhattan, 
&c.  Co.,  45  Barb.  136;  Gibbs  v.  Consolidated  Gas  Co.,  130  U.  S. 
396  ;  Williams  v.  Mutual  Gas  Co.,  52  Mich.  499  ;  In  re  Rochester 
Natural  Gas,  &c.  Co.  v.  Richardson,  63  Barb.  437. 

Our  General  Assembl}-,  recognizing  the  fact  that  natural  gas  com- 
panies were,  in  a  sense,  public  corporations,  conferred  upon  them  the 
right  of  eminent  domain,  by  an  act  approved  February  20,  1889,  Acts 
1889,  p.  22. 

It  has  often  been  held  that  mandamus  is  the  proper  proceeding  by 
which  to  compel  a  gas  company  to  furnish  gas  to  those  entitled  to  re- 
ceive it.  8  Am.  and  Eng.  Encyc.  of  Law,  1284-1289  ;  People  v.  Man- 
hattan Gas  Light  Co.,  supra ;  Williams  v.  Mutual  Gas  Co.,  sup7'a  ; 
Rochester  Natural  Gas,  &c.  Co.  v.  Richardson,  su,2)ra. 

In  view  of  these  authorities,  we  are  constrained  to  hold  that  a  nat- 
ural gas  compan}',  occupying  the  streets  of  a  town  or  citj-  with  its 
mains,  owes  it  as  a  duty  to  furnish  those  who  own  or  occupy  the  liouses 
abutting  on  such  street,  where  such  owners  or  occupiers  make  the 
necessary  arrangements  to  receive  it  and  comply  with  the  reasonable 
regulations  of  such  company,  such  gas  as  they  ma}'  require,  and  that, 
where  it  refuses  or  neglects  to  perform  such  duty,  it  may  be  compelled 
to  do  so  by  writ  of  mandamus.  As  to  the  sufficiency  of  an  answer 
averring  that  the  comyany  had  not  a  sufficient  supply  to  furnish  all 


PORTLAND   NATURAL   GAS   AND   OIL   CO.   V.   STATE.  43 

those  demanding  gas,  we  intimate  no  opinion,  as  no  such  defence  was 
interposed  in  this  case. 

It  follows  that  the  complaint  in  this  case  states  a  cause  of  action 
against  the  appellant,  and  that  the  court  did  not  err  in  overruling  the 
demurrer  thereto. 

The  second  paragraph  of  the  answer  avers  that  at  the  time  of  the 
demand  for  gas  alleged  in  the  complaint,  the  relator  was  being  fur- 
nished with  natural  gas  by  the  Citizens'  Natural  Gas  and  Oil  Min- 
ing Company',  of  Portland,  Indiana,  and  that  said  company  has  ever 
since  continued  to  furnish  him  with  gas  for  fuel  and  lights,  and  is 
ready  and  willing  to  continue  doing  so,  so  long  as  he  may  pay  for  the 
same. 

The  third  paragraph  avers  that  the  relator  has  no  interest  in  the  ap- 
pellant, except  what  he  may  have  and  hold  under  the  laws  of  the  State 
in  common  with  all  other  citizens  of  the  city  of  Portland,  as  shown  b}-- 
the  allegations  in  the  complaint. 

The  fourth  paragraph  avers  that  the  demand  which  the  relator  alleges 
he  made  on  the  appellant  to  furnish  him  natural  gas  is  couched  in  gen- 
eral terms  merely,  and  is  not  express  and  distinct,  and  does  not  clearly 
designate  the  precise  thing  which  is  required,  but  is  vague,  indefinite, 
and  uncertain,  as  shown  by  the  facts  alleged  in  the  complaint. 

It  is  contended  by  the  appellant,  in  support  of  the  second  paragraph 
of  its  answer,  that  in  view  of  the  facts  therein  averred  it  could  not 
comply  with  the  demand  of  the  relator  without  a  violation  of  the  pro- 
visions of  an  act  of  the  General  Assembly,  approved  March  9,  1891, 
Acts  1891,  p.  381. 

It  would  seem  to  be  a  sufficient  answer  to  this  contention  to  sa}'  that 
it  does  not  appear,  b}'  any  averment  in  this  answer,  that  it  was  neces- 
sar}'  to  change,  extend,  or  alter  any  service  or  other  pipe  or  attach- 
ment belonging  to  the  Citizens'  Natural  Gas  and  Oil  Mining  Compau}-, 
in  order  to  suppl}'  the  relator  with  the  gas  he  demanded.  For  an}'- 
thing  appearing  from  this  answer,  the  gas  required  by  the  relator  from 
the  appellant  could  have  been  furnished  without  interfering  with  that 
company.  But  if  it  appeared  otherwise,  we  would  not  be  disposed  to 
place  a  construction  upon  that  act,  which  would  give  a  gas  company 
furnishing  unsatisfactory  service,  or  charging  an  unsatisfactory-  price 
for  its  service,  the  perpetual  right  to  furnish  gas  to  a  particular  building 
because  it  had  been  permitted  to  attach  its  appliances  for  the  purpose 
of  furnishing  gas. 

In  our  opinion,  the  court  did  not  err  in  sustaining  a  demurrer  to  this 
answer. 

The  third  paragraph  of  the  answer  was  wholly  insufficient  to  bar  the 
relator's  cause  of  action.  It  was  not  necessary  that  he  should  own 
an  interest  in  the  appellant,  different  from  that  held  by  other  citizens 
of  the  cit}'  of  Portland.  It  was  sufficient  that  the  appellant  owed  him 
a  dut)',  in  common  with  other  citizens,  to  furnish  him  gas,  which  duty 
it  had  refused  to  perform. 


44         CINCINNATI,   HAMILTON,    ETC.   K.   K.   V.    BOWLING   GREEN. 

The  fourth  paragraph  of  the  answer  states  no  issuable  fact,  and  is 
clearly  bad. 

The  evidence  in  the  cause  tends  to  support  the  finding  of  the  Circuit 
Court,  and  we  cannot,  for  that  reason,  disturb  the  finding  on  the  evi- 
dence. 

There  is  no  error  in  the  record  for  which  the  judgment  of  the  Circuit 
Court  should  be  reversed. 

Judgment  affirmed} 


CINCINNATI,   HAMILTON  AND  DAYTON  RAILROAD  CO., 
V.  VILLAGE  OF  BOWLING  GREEN. 

Supreme  Court  of  Ohio,  1879. 

[57   Oh.  St.  336.2] 

Error  to  the  Circuit  Court  of  Wood  Count}'. 

This  action  was  brought  in  the  Court  of  Common  Pleas  of  Wood 
county,  b}'  the  village  of  Bowling  Green,  to  recover  of  the  railroad 
company,  plaintiff  in  error,  a  sum  of  mone>'  to  reimburse  the  village  for 
expenditures  incurred  by  it  in  maintaining  electric  lights  at  certain 
places  that  b}'  ordinance  it  had  required  the  railroad  company'  to  main- 
tain, and  which  the  latter  had  neglected  to  do. 

The  village  prevailed  in  the  Court  of  Common  Pleas,  and  the  judg- 
ment there  rendered  in  its  favor  was  affirmed  bv  the  Circuit  Court.  To 
reverse  the  judgments  thus  rendered  is  the  object  of  the  proceedings  in 
this  court. 

Bradbury,  J.  .  .  .  The  ordinance  in  question  specifies  the  points  at 
which  lights  are  to  be  maintained,  and  prescribes  the  kind  of  light,  and 
the  lamps  and  attachments  to  be  employed.  Electricity'  must  be  used, 
and  the  lamps  and  attachments  must  he  in  all  respects  similar  to  those 
used  in  lighting  the  streets  of  the  village. 

Plaintiff  in  error  contends,  that  these  provisions  are  unreasonable  at 
the  [point]  of  the  power  of  determining  the  kind  of  light  to  be  used, 
and  of  contracting  on  its  own  behalf;  that  the  system  of  lamps  and 
attachments  which  the  ordinance  prescribes  are  the  subject  of  patents, 
and  that  the  exclusive  right  to  use  them  within  the  village,  has  been 
granted  to  the  Bowling  Green  Electric  Light  and  Power  Company,  and 
that,  therefore,  the  plaintiff  in  error  was  put  wholly  within  the  power 
of  such  company  by  the  ordinance,  and  will  be  compelled  to  pay  what- 
ever price  the  company  chooses  to  establish  or  charge  for  the  lights 
required. 

1  Compare:  McCune  v.  Norwich  Gas  Co.,  30  Conn.  .521 ;  Coy  v.  Gas  Co.,  146  Ind. 
655  ;  In  re  Pryor,  55  Kans.  '."^O ;  Commonwealth  r.  Lowell  Gas  Co.,  12  Allen,  75  ;  Pat- 
erson  Gas  Co.  ?'.  Brady,  27  N.  .T.  L.  245 ;  Lanesville  v.  Gas  Co.,  47  Oh.  St.  1  ;  Shepard 
V.  Milwaukee  Gas  Co.,  6  "Wis.  539.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


CINCINNATI,   HAMILTON,    ETC.    E.    E.    V.    BOWLING   GREEN.  45 

As  respects  the  objection  to  the  ordinance  on  account  of  its  specifj-- 
ing  the  kind  of  hglit  to  be  used,  the  statute  —  section  2495,  Revised 
Statutes  — among  otlier  provisions,  requires  the  ordinance  to  "specif}- 
the  manner  in  which  such  .  .  .  railwa}-  shall  be  lighted."  .  .  .  This 
language  seems  broad  enough  to  authorize  the  municipality  to  prescribe 
the  kind  of  light  to  be  employed  for  that  purpose,  —  whetlier  electricity, 
gas,  or  any  other  material  or  means  that  may  be  reasonably  adapted  to 
the  purpose.  The  power  of  selecting  the  kind  of  light  to  be  used  can 
be  exercised,  of  course,  only  where  more  than  one  kind  is  available. 
This  power  must  reside  somewhere,  either  in  the  railroad  company  or 
the  municipality.  The  power  to  require  the  lighting  of  a  railroad 
track  is  a  branch  of  the  police  power  of  the  State.  If  the  terms  of  tliis 
section  (2495)  of  the  Revised  Statutes,  granting  the  power  to  muni- 
cipal bodies  should  not  be  broad  enough  to  expressly  autliorize  them  to 
prescribe  the  kind  of  light  to  be  employed,  yet,  as  the  power  to 
compel  a  railroad  company'  to  light  its  track  at  all,  implies  authority 
to  require  it  to  be  efficientl}'  done,  it  would  seem  to  necessarilj*  follow 
that,  within  reasonable  limits,  the  power  to  prescribe  the  kind  of  liglits 
rests  with  the  municipal  authorities.  They,  of  course,  in  this  respect 
could  not  cast  an  unreasonable  burden  on  the  railroad  company'. 

Doubtless,  an  ordinance  would  cast  upon  a  railroad  company-  an  un- 
reasonable burden,  and  for  that  reason,  would  be  void,  if  it  prescribed 
an  electric  light,  when  the  municipality  contained  no  electric  plant  or 
other  convenient  means  of  generating  electricit}- ;  otherwise,  each 
raunicipalit}',  large  or  small,  through  which  a  railroad  might  pass, 
could  compel  those  who  operate  the  road  to  erect  a  plant  to  generate 
the  light  thus  required. 

There  was,  however,  in  the  village  of  Bowling  Green,  at  the  time  the 
ordinance  under  consideration  was  passed,  an  electric  light  and  power 
company',  operating  an  electric  plant,  and  therefore  the  means  was  at 
hand  that  would  enable  the  railroad  company  to  compl}-  with  require- 
ments of  the  ordinance  in  this  respect,  and,  therefore,  such  requirement 
was  not  in  itself  unreasonable. 

Did  the  ordinance  unreasonabl}'  limit  the  right  of  the  railroad  com- 
pany to  contract  on  its  own  behalf,  or  unreasonably  place  it  within  the 
power,  and  subject  it  to  extortion  at  the  hands  of  the  electric  light  and 
power  company,  of  which  it  must  procure  the  lights  ? 

True,  the  railroad  was  required  to  adopt  electricity  as  the  means  of 
illumination,  and  was  confined  to  the  kind  of  lamps  and  their  attach- 
ment, then  in  use  in  said  village.  If  the  exclusive  right  to  use  within 
the  village  these  lamps  and  attachments  had  been  granted  by  the 
patentee  to  the  Bowling  Green  Electric  Light  and  Power  Company, 
and  if  this  company  had  an  absolute  power  to  fix  the  price  that  it  could 
exact  for  the  use  of  its  light  and  lamps,  then  the  contention  of  the  rail- 
road company  would  find  strong  support  in  reason  and  justice.  It  may 
be  conceded,  however,  that  the  lamps  and  their  attachments,  as  well 
as  the  system  of  lighting  in  use  in  the  village  of  Bowling  Green,  were 


46  CINCINNATI,   HAMILTON,    ETC.    K.    R.   V.   BOWLING   GREEN. 

all  protected  by  patents,  and  that  the  Bowling  Green  Electric  Light 
and  Power  Co.  had  the  exclusive  right  to  their  use  within  that  village, 
and  3'et  the  power  of  extortion  would  not  follow,  necessarily. 

The  light  and  power  compan}'  have  acquired  in  the  village  rights  that 
are  in  the  nature  of  a  monopoly.  The  use  to  which  it  has  devoted  its 
property  is  one  in  which  the  public  have  an  interest,  and  it  requires  the 
use  of  the  streets  and  alleys  of  the  village  to  conduct  and  distribute 
electricity^  to  its  lamps  for  illuminating  purposes;  and,  in  addition  to 
this,  power  to  appropriate  private  property  has  been  conferred  on  it. 
Section  3471,  Revised  Statutes.  Both  reason  and  authority  deny  to  a 
corporation  clothed  with  such  rights  and  powers,  and  bearing  such  re- 
lation to  the  public,  the  power  to  arbitraril3^  fix  the  price  at  which  it 
will  furnish  light  to  those  who  desire  to  use  it.  Beach  on  Corporations, 
sections  834,  835,  836  ;  Zanesville  v.  Gas  Light  Co.,  47  Oh.  St.  1  ; 
Munn  V.  Illinois,  94  U.  S.  113  ;  Spring  Valley  Water  Works  v.  Schot- 
tlere^  al,  110  U.  S.  347;  Gibbs  v.  Baltimore  Gas  Co.,  130  U.  S.  408; 
The  City  of  St.  Louis  v.  The  Bell  Telephone  Co.,  96  Mo.  623  ;  Ne- 
braska V.  The  Nebraska  Telephone  Co.,  17  Neb.  126  ;  Central  Union 
Telephone  Co.  v.  Bradbury,  106  Ind.  1. 

The  Bowling  Green  Electric  Liglit  and  Power  Company  was  bound 
to  serve  all  of  its  patrons  alike  ;  it  could  impose  on  the  plaintiff  in 
error  no  greater  charge  than  it  exacted  off  others  who  had  used  its 
lights.  The  village  had  authority  to  fix  the  rates  to  be  charged  b}-  the 
company  for  lights.  Section  2478,  Revised  Statutes.  If  the  village 
authorities  should  fail  to  act  in  this  respect,  and  the  plaintiff  in  error 
and  the  power  and  light  company  could  not  agree  upon  a  price,  the 
latter,  by  an  appeal  to  the  courts  of  the  State  could  compel  the  former 
to  furnish  the  lights  at  a  reasonable  price. 

Therefore,  the  provisions  of  the  ordinance  requiring  the  plaintiff  in 
error  to  use  the  lamps  and  attachments  then  in  use  in  the  village  was 
not  unreasonable.  Notwithstanding  that  the  sole  right  to  use  the 
lamps  and  attachments  prescribed  may  have  been  vested  in  the  Bowl- 
ing Green  Electric  Light  and  Power  Co.,  yet,  as  that  company  was 
bound  to  furnish  light  to  all  its  patrons  on  terms  that  must  be  both 
reasonable  and  impartial,  the  ordinance  requiring  the  use  of  such 
lamps  and  attachments  should,  in  that  respect,  be  deemed  reasonable. 
The  right  to  make  contracts  on  its  own  behalf  is  doubtless  a  valuable 
one  to  the  plaintifl^  in  error,  and  if  there  had  been  two  or  more  electric 
light  plants  in  the  village,  an  attempt  to  dictate  to  plaintiff  in 
error  which  of  them  it  should  choose  might  have  presented  an  interest- 
ing question.  There  was  but  one,  however,  and  the  only  choice  open 
to  plaintiff  in  error,  was  between  building  a  new  plant  or  taking  light  of 
the  compan}'  then  established  in  the  village.  If  that  company  had  an 
exclusive  right  to  use  the  lamps  and  attachments  prescribed,  then  no 
choice  was  open  to  the  plaintiff  in  error,  and  it  would  be  compelled  to 
procure  the  lights  of  that  compan}'.  This,  however,  from  a  practical 
point  of  view,  was  of  little  or  no  concern,  because,  while  the  circum- 


FLEMING   V.   MONTGOMERY   LIGHT   CO.  47 

stances  surrounding  the  plaintiff  in  error  compelled  it  to  take  the 
lights  of  this  particular  company,  yet  the  latter  was  also  compelled  to 
furnish  them  at  a  reasonable  price.  The  State,  under  these  circum- 
stances, must  yield  its  police  power,  a  power  existing  for  the  benefit 
of  all  its  citizens,  or  the  right  of  a  railroad  company  to  an  unlimited 
power  of  contracting  must  give  way.  This  is  not  the  only  instance 
in  which  its  powers  in  this  respect  are  curtailed  for  the  public  good. 
This  is  notably  the  case  in  respect  of  its  power  to  contract  concern- 
ing the  transportation  of  freight  and  passengers. 

The  ordinance  in  question  requires  the  lights  to  he  furnished  by 
the  plaintiff  in  error,  shall  be  kept  lighted  during  the  same  hours 
tliat  the  street  lamps  of  the  village  may  be  kept  lighted ;  this  we 
think  is  sufflcientlj'  definite  to  clearly  inform  the  plaintiff  in  error  of 
what  was  required  of  it  in  this  respect. 

The  ordinance,  we  think,  imposes  no  unreasonable  burdens  on 
the  plaintiff  in  error.  Judgment  affirmed}- 


FLEMING  V.   MONTGOMERY   LIGHT   CO. 
Supreme  Court  op  Alabama,  1892. 

[100  Ala.  657.] 

Coleman,  J.  Appellant  as  complainant  filed  the  present  bill  for  the 
purpose  of  enjoining  the  respondent,  the  Montgomery  Light  Company, 
from  removing  its  gas  meter  from  the  premises  of  complainant,  and  to 
enjoin  the  respondent  "  from  refiisiqg  to  furnish  your  orator  gas." 
Complainant's  rights  are  very  clearly  set  forth  in  the  bill  and  grow 
out  of  an  agreement  entered  into  in  the  year  1852  between  the  City  of 
IMontgomery  and  the  John  Jeffrey  Company,  by  the  terms  of  which 
the  exclusive  right  and  privilege  of  manufactui-ing  and  supplying  gas 
for  a  period  of  fift}'  3'ears  for  the  city  of  Montgomer}-  and  its  inhabi- 
tants was  granted  to  the  John  Jeffre}'  Company,  the  said  company 
agreeing  on  its  part,  "at  all  times  to  supply  the  inhabitants  of  the 
City  of  Montgomery,  for  private  use,  with  a  sufficient  quantity'  of  gas 
of  the  most  approved  quality."  The  Montgomery  Light  Company  has 
succeeded  to  all  the  privileges  and  assumed  all  the  obligations  of  the 
John  Jeffrey  Company,  and  the  bill  makes  the  further  averment,  "  that 
it  is  the  duty  of  the  respondent  under  its  charter  to  supply  all  appli- 
cants with  gas  and  electric  lights,  one  or  both,  at  tlie  option  of  the 
consumer,"  There  is  nothing  in  the  agreement  by  which  the  Light 
Company  may  compel  the  inhabitants  of  the  city  or  any  one  of  them 
to  use  its  gas  and  electric  lights.  Stripped  of  the  statement  of  facts 
necessary  to  present  the  complainant's  case  in  an  intelligible  form,  the 

1  Compare  :  Andrews  v.  Electric  Light  Co.,  53  N.  Y.  S.  810, 


48  STATE   EX   EEL.   V.    CITIZENS'   TELEPHONE   CO. 

one  question  raised  is,  whether  the  assumption  to  supply  the  inhab- 
itants of  the  city  of  Montgomery  with  gas,  imposes  the  legal  duty  on 
the  company  to  furnish  gas  meters  and  keep  on  hand  a  sufficient  quan- 
tity of  gas,  for  inhabitants  who  do  not  use  or  consume  gas,  but  who 
desire  to  be  supplied  ''with  meters  and  connections  with  the  defendant's 
gas  pipes  so  that  in  case  an  accident,  which  is  apt  to  occur,  should 
happen,  they  could  use  the  gas." 

A  statement  of  the  proposition  suggests  its  answer.  There  can  be 
no  difference  in  principle  between  the  case  stated  and  the  one  in  the 
bill,  in  which  it  is  shown  that  at  one  time  complainant  used  gas  for 
lights,  but  at  the  time  of  filing  the  bill,  and  previous  thereto,  com- 
plainant used  in  his  building  electric  lights  furnished  by  a  different 
company,  or  corporation,  and  was  not  a  patron  of  defendant  compan}-, 
and  the  injunction  was  to  make  provision  "to  use  gas"  "in  case  au 
accident  should  happen  to  the  electric  lights  in  use  by  orator." 

Plaintiff's  contention  is,  that  although  he  has  made  other  arrange- 
ments with  a  different  company  for  light,  3'et  it  is  the  duty  of  respond- 
ent to  keep  on  hand  gas  and  electricity  with  proper  meters  and  con- 
nections and  electric  burners  "  in  case  of  an  accident "  to  the  company 
which  has  contracted  to  supply  him,  and  that  too  without  any  cor- 
responding obligation  on  his  part  to  use  the  gas  of  the  defendant. 
We  can  find  no  such  provision  in  the  contract  between  the  city  and 
respondent,  expressed  or  implied.  There  is  no  equality  or  equit}'  in 
such  a  proposition.  It  is  hardl}'  necessary  to  cite  authorities,  but  we 
refer  to  the  following :  Williams  v.  Mutual  Gas  Co.,  50  Amer.  Rep. 
266  ;  52  Mich.  499. 

There  is  no  error  in  the  record.  Affirmed.^ 


STATE  EX  REL.    GWYNN  v.  CITIZENS'  TELEPHONE   CO. 
Supreme  Court  of  South  Carolina,   1901. 

[61  S.  C.  83.2] 

Petition  by  J.  B.  Gwynn  for  mandamus  against  Citizens'  Telephone 
Co.,  requiring  it  to  place  a  telephone  in  his  store  and  in  his  residence. 
From  order  refusing  the  writ,  petitioner  appeals. 

Mr.  Chief  Justice  McIver.  This  was  an  application,  addressed  to 
the  Circuit  Court,  for  a  writ  of  mandamus^  requiring  the  respondent  to 
place  a  telephone  in  the  relator's  grocer}'  store  and  one  in  his  residence, 
in  the  city  of  Spartanburg,  and  to  connect  them  properly  with  its  ex- 
change and  its  subscribers,  and  to  do  all  acts  necessar}'  to  afford  the 
relator  the  like  service  and  telephonic  communication  afforded  to  its 

1  Compare :  Adams  Express  Co.  v.  Cincinnati  Gas  Co.,  10  Oh.  Dec.  389. 

2  This  case  is  abridged.  —  Ed. 


STATE   EX   EEL.   V.   CITIZENS'   TELEPHONE   CO.  49 

other  subscribers.  The  application  was  refused  by  the  circuit  judge, 
and  the  relator  appealed  to  this  court  on  the  several  grounds  set  out  in 
the  record,  which  it  is  not  necessary  to  state  here,  as  it  will  be  suffi- 
cient to  consider  the  several  questions,  as  stated  by  counsel  for  respond- 
ent, in  his  argument  here,  which  are  presented  by  this  appeal. 

As  is  said  by  the  circuit  judge  in  his  decree,  "•  There  is  practically 
no  dispute  as  to  the  facts,"  wiiich  may  be  stated,  substantially,  as  fol- 
lows: The  relator  is  now  and  has  been  since  the  28th  of  June,  1898, 
engaged  in  the  mercantile  business,  carrying  on  a  retail  grocery  store 
in  the  city  of  Spartanburg,  and  occupies  a  residence  in  said  city  ;  that 
the  respondent,  on  the  IGth  day  of  August,  1898,  became  a  corpora- 
tion under  the  laws  of  this  State,  for  the  purpose  of  owning,  construct- 
ing, using,  and  maintaining  electric  telephone  lines  and  exchange  within 
the  city  of  Spartanburg,  and  as  such  is  now  and  was  at  the  time  of  the 
commencement  of  this  proceeding  engaged  in  the  said  business,  havino- 
established  an  exchange  in  said  city,  from  which  connections  were  made 
to  telephone  instruments  in  offices,  places  of  business  and  residences 
of  its  subscribers  ;  that  the  city  council  of  Spartanburg  has  authorized 
the  respondent  to  erect  poles  in  the  streets  of  the  city  for  the  purpose 
of  transporting  news  over  its  wires  to  its  subscribers,  haying  a  system 
of  wires  throughout  the  city,  connected  with  telephone  instruments  fur- 
nished b}-  it  to  its  subscribers  ;  that  whenever  a  person  desires  a  tele- 
phone, it  is  placed  in  the  office,  residence,  or  place  of  business  of  the 
applicant,  at  the  expense  of  the  respondent,  with  authority  to  the  sub- 
scriber to  use  the  same,  upon  certain  rates  and  terms,  for  the  purpose 
of  telephonic  communication  with  others  ;  that  some  time  in  the  year 
1899,  the  respondent  placed  telephones  in  relator's  residence  and  gro- 
cery store,  giving  proper  connections  with  respondent's  exchange  and 
its  subscribers  or  customers  throughout  the  cit}-  of  Spartanburg  and 
elsewhere  ;  that  this  was  done  under  an  agreement  with  the  relator 
that  he  would  use  respondent's  telephone  exclusively,  and  not  the  tele- 
phone of  the  Bell  Telephone  Compan}^,  and  that  certain  of  respond- 
ent's subscribers  in  tlie  said  cit}'  of  Spartanburg,  including  most  of  the 
grocerymen,  were  furnished  with  telephones  by  the  respondent,  under 
a  similar  agreement,  but  some  of  respondent's  subscribers,  including 
some  merchants,  phj-sicians,  and  others  and  one  groceryman,  whose 
place  of  business  was  on  the  same  street  of  said  cit}'  as  the  grocery 
store  of  relator,  were  supplied  with  telephones  by  respondent  under 
agreements  which  contained  no  such  stipulation  as  to  the  exclusive  use 
of  respondent's  telephones,  and  they  were  using  both  telephones  ;  that 
on  or  about  the  6th  of  February,  1900,  the  respondent  learning  that  the 
relator  had  purchased  Holland's  market,  in  which  there  was  a  tele- 
phone placed  there  by  the  Southern  Bell  Telephone  Company,  a  cor- 
poration duly  chartered  under  the  laws  of  this  State,  and  that  said 
market  immediately  adjoined  relator's  grocer}'  store,  and  that  relator 
had  cut  a  door  through  the  wall  separating  his  grocery  store  from  said 
market,  thus   opening  a  means  of  communication   between   the    two 

4 


50  '    STATE   EX   REL.   V.   CITIZENS*   TELEPHONE   CO. 

structures,  immediately  removed,  against  tlie  protest  of  the  relator,  the 
telephones  which  the  respondent  had  previouslj'  placed  in  relator's 
grocery  store  and  residence,  for  the  avowed  purpose  of  preventing 
the  relator  from  using  respondent's  telephones  while  he  was  using  the 
Bell  Telephone  —  respondent  claiming  that  under  its  agreement  with 
relator  he  was  bound  to  confine  himself  to  the  use  of  respondent's 
telephones  ;  that  on  or  about  the  8th  of  February,  1900,  the  relator 
tendered  to  respondent  the  amount  due  for  the  past  use  of  respond- 
ent's telephones,  which  was  accepted,  and  that  relator  thereupon  de- 
manded that  respondent  place  one  of  their  telephones  in  his  grocery 
store  and  one  in  his  residence,  with  proper  connections  with  respond- 
ent's exchange  and  its  subscribers  ;  but  the  respondent  refused  to  com- 
ply with  such  demand  unless  the  relator  would  agree  to  use  respondent's 
telephones  exclusivel}',  and  not  use  the  telephone  which  had  been  placed 
in  said  market  b}'  the  Bell  Telephone  Company. 

Tiie  respondent,  in  its  answer,  alleges  :  "  That  its  supply  of  telephone 
instruments  is  limited,  and  that  it  is  with  difficulty  that  this  respondent 
can  furnish  such  instruments  to  all  applicants  therefor.  That  even  if 
the  respondent  was  legally  bound  to  furnish  such  instruments  now,  it 
would  be  impossible  for  it  to  do  so  within  less  than  sixt}'  days,  for  the 
reason  of  its  inability  to  enlarge  its  switch-board."  But  as  this  allega- 
tion is  not  responsive  to  any  allegation  contained  in  relator's  petition, 
and  was  not  sustained  b}'  any  evidence,  so  far  as  the  "Case"  shows,  it 
cannot  now  be  considered.  Beside,  this  court,  having  reached  the  con- 
clusion, as  will  prescntl}'  appear,  that  the  relator  is  entitled  to  the  tnan- 
damus  for  which  purpose  the  case  will  be  remanded  to  the  Circuit  Court, 
with  instructions  to  carry  out  the  views  herein  announced,  that  court 
can,  in  its  order  directing  the  writ  of  inandamiis  to  be  issued,  make 
such  provision,  by  giving  a  reasonable  time  within  which  the  duty 
sought  to  be  enforced  shall  be  performed,  provided  the  fact  be  as 
alleged  in  the  foregoing  quotation  from  respondent's  answer. 

We  will  next  proceed  to  consider  the  several  questions  of  law,  grow- 
ing out  of  the  facts  above  stated,  and  presented  by  this  appeal.  These 
questions  are  thus  stated  in  the  argument  here,  on  the  part  of  the  re- 
spondent, and  we  propose  to  adopt  that  statement.  1st.  Is  the  de- 
fendant telephone  company,  in  any  sense,  a  common  carrier?  2.  Can 
the  defendant  telephone  company  be  required,  in  any  case,  against  its 
will,  to  supply  one  of  its  instruments  to  petitioner  ?  3.  Can  the  de- 
fendant telephone  compan}-  be  required  by  mandcmius,  under  the  cir- 
cumstances of  this  case,  to  so  furnish  its  instruments  to  petitioner? 

To  dispose  of  the  third  question,  it  will  be  necessary  to  recur  some- 
what to  *'  the  circumstances  of  this  case."  The  undisputed  facts  are 
that  the  respondent,  in  the  exercise  of  its  franchise  conferred  b}-  its 
charter,  had  established  a  telephone  business  in  the  city  of  Spartan- 
burg, and  had  erected  its  poles  and  strung  its  wires  in  and  along  the 
streets  of  said  city,  and  thus  had  become,  at  least,  a  quasi  common 
carrier  of  news,  and  as  such  was  under  an  obligation  to  serve  all  alike 


.  STATE   EX   EEL.   V.   CITIZENS'   TELEPHONE   CO.  51 

wlio  applied  to  it  within  reasonable  limitations,  without  any  discrimi- 
nation whatsoever.  When,  therefore,  the  relator  applied  to  the  re- 
spondent to  replace  the  telephone  instruments  in  his  grocery  store  and 
in  his  residence,  from  whence  they  had  been  removed  by  the  defendant 
compan}'^  but  a  few  da3's  before,  the  respondent  was,  in  our  opinion, 
bound  to  comply  with  such  demand,  under  the  obligations  to  the 
public  which  it  had  assumed.  The  reason  given  for  its  refusal  — 
that  the  relator  refused  to  agree  that  he  would  use  respondent's  tele- 
phone S3'stem  exclusively  —  was  not  sufficient  to  relieve  it  from  its 
obligation  to  serve  the  public,  of  which  the  relator  was  one,  without 
an}'  discrimination  whatsoever ;  and  especially  is  this  so  when  it  was 
admitted  that  the  respondent  was,  at  the  time,  affording  to  one  per- 
son, at  least,  who  was  engaged  in  the  same  business  as  that  of  the 
relator,  whose  place  of  business  was  on  the  same  street  of  the  same 
citj',  the  same  facilities  which  the  relator  demanded,  without  requiring 
any  such  stipulation  as  that  required  of  the  relator,  but  who  was,  in 
fact,  using  both  telephone  systems.  It  seems  to  us  that  the  respond- 
ent, after  offering  to  the  public  its  telephone  system  for  the  transmis- 
sion of  news,  would  have  no  more  right  to  refuse  to  furnish  the  relator 
its  facilities  for  the  transmission  of  news  unless  he  would  agree  not  to 
use  the  Bell  Telephone  system  in  operation  in  the  same  city,  but  use 
exclusively  respondent's  system,  than  a  raihvay  company  would  have 
to  refuse  to  transi)ort  the  goods  of  a  shipper,  unless  such  shipper  would 
agree  to  patronize  its  line  exclusively  and  not  give  any  of  its  business 
to  any  competing  railway-  line.  Nor  does  the  fact  (if  fact  it  be)  that 
the  relator  had  committed  a  breach  of  its  previous  contract  with  re- 
spondent, when  he  purchased  Holland's  market,  in  which  an  instrument 
of  the  Bell  Telephone  Company  had  been  placed,  and  had  thereby  ac- 
quired the  right  to  use  the  Bell  Telephone,  afford  any  reason  why  the 
respondent  should  decline  to  comply  with  relator's  demand  to  furnish 
his  grocery  store  and  residence  with  its  telephone  instruments.  If  the 
relator  had  committed  any  breach  of  its  previous  contract  with  the  re- 
spondent of  which  the  latter  had  any  legal  right  to  complain,  its 
remedy,  as  was  said  in  one  of  the  cases  which  we  have  consulted,  was 
by  an  action  to  recover  damages  for  such  breach  of  contract,  but  not 
by  refusing  to  perform  its  obligation  to  the  public,  of  which  the  relator 
was  one.  As  to  the  other  reason  suggested  why  the  mandamus  prayed 
for  should  not  issue  under  the  circumstances  of  this  case,  to  wit:  that 
respondent  did  not  have  the  means  to  comply  with  the  demand  of  the 
relator  within  less  than  sixty  days,  it  is  only  necessary  to  repeat  what 
we  have  said  above :  that  there  does  not  appear  to  be  any  evidence  in 
the  "  Case  "  to  sustain  the  fact  upon  which  this  suggestion  is  based, 
and,  therefore,  it  cannot  now  be  considered.  Besides,  as  is  said  above, 
tliat  is  a  matter  which  may  be  considered  when  the  case  goes  back  to 
the  Circuit  Court,  which  can,  in  ordering  the  mandamus  to  issue,  as 
herein  directed,  make  suitable  provision  for  allowing  respondent  reason- 
able time,  if  such  sliall  be  shown  to  be  necessary,  to  comply  with  the 
relator's  demand. 


52        SHEPARD  V.   GOLD  STOCK  AND  TELEGKAPH  CO. 

As  to  the  position  taken  in  the  argument  —  that  mandarmis  is  not 
the  proper  remedy  —  we  thinlc  it  entirely  clear,  both  upon  principle  and 
authority,  that  mandamus  is  the  appropriate  remedy  in  a  case  of  this 
kind. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Circuit  Court 
be  reversed  and  that  the  case  be  remanded  to  that  court,  with  instruc- 
tions to  carry  out  the  views  therein  announced.^ 


SHEPARD  V.  GOLD   STOCK  AND  TELEGRAPH  CO. 
Supreme  Court  of  New  York,  1885. 

[38  Hun,  338.] 

Appeal  from  an  order  vacating  an  injunction  restraining  the  defend- 
ant from  removing  the  gold  and  stock  reporting  instruments  from  the 
rooms  of  the  plaintiff. 

Dykman,  J.  The  object  of  this  action  is  to  restrain  the  defendant 
from  removing  the  gold  and  stock  reporting  instruments  from  the  plain- 
tiffs place  of  business,  and  a  preliminary  injunction  was  obtained 
which  did  forbid  such  removal.  That  order  was  vacated  at  Special 
Term,  and  we  have  an  appeal  from  that  order.  The  appeal  is  without 
merit.  In  the  contract  by  which  the  plaintiff  procured  the  possession 
of  the  instruments,  the  company  reserved  the  unqualified  right  to  dis- 
continue the  reports  and  remove  the  instruments  without  notice  when 
they  were  used  in  any  way  which  it  considered  detrimental  to  its  inter- 
ests. The  injunction  prohibited  the  exercise  of  the  right  thus  reserved, 
and  was  for  that  reason  properly  vacated. 

The  order  should  be  affirmed,  with  costs  and  disbursements. 

Pratt,  J.  Defendants  are  a  public  corporation  under  obligation  to 
render  their  services  impartially  and  without  discrimination  to  all  per- 
sons who  comply  with  their  reasonable  rules.  Yet  the  contract  entered 
into  by  the  parties  is  not  to  be  disregarded,  and  such  reasonable  stipu- 
lations as  it  contains  will  be  respected  and  enforced  b}'  the  court.  The 
contract  provides  as  follows:  "These  reports  are  furnished  to  sub- 
scribers for  their  private  use  in  their  own  business,  exclusivel}'.  It  is 
stipulated  that  such  will  not  sell  or  give  up  the  copies  of  the  reports  in 
whole  or  in  part,  nor  permit  an}'  outside  party  to  copy  them  for  use  or 
publication.  Under  this  rule  subscription  by  one  party  for  the  benefit 
of  himself  and  others  at  their  joint  expense  will  not  be  received."  The 
stipulation  is  reasonable  and  not  in  conflict  with  the  duty  owed  by 

1  Compare:  State  i;.  Telephone  Co.,  23  Fed.  539;  Hockett  u.  State,  105  Ind.  250  ; 
Telephone  Co.  y.  Talley,  118  Ind.  194;  State  v.  Telephone  Co.,  17  Neb.  126;  State  v. 
Telephone  Co.,  36  Oh.  St.  296  ;  Telephone  Co.  v.  Com.,  3  Atl.  825 ;  Telephone  Co. 
V.  Telephone  Co.,  61  Vt.  241.  —  Ed. 


INTER-OCEAN  PUBLISHING   CO.   V.   ASSOCIATED   PRESS.  53 

defendants  to  the  public.  The  proof  shows  that  plaintiff  habitually 
caused  the  quotations,  when  'received  upon  defendant's  instrument,  to 
be  transmitted  by  private  wire  to  Lawrence  Gross  &  Co.,  at  574  Fifth 
Avenue. 

Plaintiff  seeks  to  justify  this  breach  of  the  conditions  upon  which  he 
received  the  instrument  by  alleging  that  he  is  interested  in  business 
with  that  firm.  We  think  this  affords  no  justification.  If  plaintiff,  by 
entering  into  business  relations  with  another  firm,  could  gain  a  right  to 
repeat  the  quotations  he  might,  if  diligent,  absorb  a  great  share  of  de- 
fendant's business.  PlaintifTs  attempted  justification  brings  out  clearly 
the  reasonableness  of  the  clause  in  the  contract  to  which  we  have 
referred.  The  violation  by  plaintiff  of  the  stipulation  upon  which  he 
received  the  instrument  amply  sustains  the  order  vacating  the  injunction. 

Order  ajfirmed,  with  costs} 

Present  —  Pratt  and  Dykman,  JJ.  ;  Baunard,  P.  J.,  not  sitting. 

Order  vacating  injunction  affirmed,  with  costs. 


THE  INTER-OCEAN  PUBLISHING  CO.  v.  THE  ASSOCIATED 

PRESS. 

Supreme  Court  of  Illinois,   1900. 

[184  ///.  438.] 

Mr.  Justice  Phillips^  delivered  the  opinion  of  the  court : 
The  Inter-Ocean  Publishing  Company,  a  corporation  organized  un- 
der the  laws  of  the  State  of  Illinois,  is  engaged  in  publishing  two 
newspapers  in  the  city  of  Chicago,  known  as  "  The  Daily  Inter-Ocean  " 
and  "  The  Weekly  Inter-Ocean,"  which  have  a  wide  circulation  in  the 
States  and  Territories  of  the  United  States.  The  Associated  Press  is 
a  corporation  organized  under  the  laws  of  the  State  of  Illinois  in  1892. 
The  object  of  its  creation  was,  "  To  buy,  gather,  and  accumulate  infor- 
mation and  news;  to  vend,  supply,  distribute,  and  publish  the  same; 
to  purchase,  erect,  lease,  operate,  and  sell  telegraph  and  telephone  lines 
and  other  means  of  transmitting  news ;  to  publish  periodicals ;  to 
make  and  deal  in  periodicals  and  other  goods,  wares,  and  merchan- 
dise." It  has  about  eighteen  by-laws  with  about  seventy-five  subdi- 
visions thereof.  The  stockholders  of  the  Associated  Press  are  the  pro- 
prietors of  newspapers,  and  the  only  business  of  the  corporation  is 
that  enunciated  in  its  charter,  and  is  mainly  buying,  gathering,  and 
accumulating  news  and  furnishing  the  same  to  persons  and  corpora- 
tions who  have  entered  into  contract  therefor.     It  may  furnish   news 

1  Compare:  Grain  and  Stock  Exchange  v.  Board  of  Trade,  127  111.  153;  Telegraph 
Co.  V.  Hyer,  22  Fla.  637  ;  Telegraph  Co.  v.  Wilson,  108  Ind.  308;  Brown  v.  Telegraph, 
6  Utah,  236. 

2  The  case  is  abridged.  —  Ed. 


54  INTER-OCEAN    PUBLISHING   CO.    V.   ASSOCIATED    PRESS. 

to  persons  and  corporations  other  than  those  who  are  its  stockholders, 
and  the  term  "  memljers,"  used  in  its  by-laws,  applies  to  proprietors 
of  newspapers,  other  than  its  stockholders,  who  have  entered  into  con- 
tracts with  it  for  procuring  news.  It  does  not  appear  that  it  has  availed 
itself  of  any  of  the  powers  conferred  by  its  charter  other  than  that  of 
gathering  news  and  distributing  the  same  to  its  members.  Under  the 
by-laws  of  appellee  the  Inter-Ocean  Publishing  Company  became  a 
stockholder.  Among  the  by-laws  having  reference  to  stockholders  are 
the  following : 

"  Article  11.  —  Sec.  8.  Sale  or  purchase  of  specials.  — No  member 
shall  furnish,  or  permit  any  one  to  furnish,  its  special  or  other  news 
to,  or  shall  receive  news  from,  any  person,  firm,  or  corporation  which 
shall  have  been  declared  by  the  board  of  directors  or  the  stockholders 
to  be  antagonistic  to  the  association;  and  no  member  shall  furnish  news 
to  any  other  person,  firm,  or  corporation  engaged  in  the  business  of  col- 
lecting or  transmitting  news,  except  with  the  written  consent  of  the 
board  of  directors."   .  .  . 

Tlie  bill  set  up  the  facts  hereinbefore  stated,  and  set  out  the  by-laws 
of  the  appellee  in  full,  and  alleged  that  the  appellee  had  been  able  to 
control  the  business  of  buying  and  accumulating  news  in  Chicago  and 
selling  the  same,  and  has  thus  created  in  itself  an  exclusive  monop- 
oly in  that  business,  and  to  preserve  such  monopoly  had  declared  the 
Sun  Printing  and  Publishing  Association  a  rival  or  competitor  in  busi- 
ness and  antagonistic  to  it,  and  sought  to  prohibit  its  members  from 
buying  news  therefrom  under  pain  of  suspension  or  expulsion  ;  alleged 
that  appellee  had  at  various  times,  by  threats  of  suspension  and  ex- 
pulsion, compelled  divers  of  its  members  to  cease  buying  the  special 
news  of  the  Sun  Printing  and  Publishing  Association  under  its  con- 
tracts with  its  members.  The  bill  set  out  the  contracts  and  names  of 
such  members,  and  alleged  that  the  notice  served  on  appellant  for  a 
hearing  on  the  complainants  against  it  is  similar  to  the  action  of  ap- 
pellee against  other  members  who  were  forced  to  cease  buying  special 
news  from  the  Sun  Printing  and  Publishing  Association  ;  that  appel- 
lant is  in  duty  bound,  both  to  its  patrons  and  to  the  public,  to  publish 
all  the  news  it  can  gather,  and  if  not  able  to  obtain  such  news  from 
one  source,  it  must,  in  justice  to  its  patrons  and  the  public,  resort  to 
other  sources  ;  that  the  news  which  it  obtained  from  appellee  it  was 
unable  to  obtain  from  any  other  source,  and  appellee  would  not  fur- 
nish the  same  to  appellant  unless  it  executed  the  contract  hereinbefore 
mentioned,  because  of  which  appellant  was  forced  to  and  did  execute 
such  contract ;  that  appellee  does  not  furnish  all  the  news  obtainable 
and  desired  by  appellant  under  that  contract,  and  to  obtain  such  other 
news  appellant  was  forced  to  resort  to  the  Sun  Printing  and  Publishing 
Association  of  New  York  ;  that  the  right  to  receive  the  news  gathered 
by  appellee  and  publish  the  same  in  its  newspaper  is  a  valuable  prop- 
erty and  property  right,  and  appellant  is  forced  to  obtain  the  news  not 
obtainable  from  appellee,  and  which  is  absolutely  needed  in  publishing 


INTER-OCEAN   PUBLISHING   CO.   V.   ASSOCIATED   PRESS.  55 

its  newspapers,  from  the  Sun  Printing  and  Publishing  Association  ;  that 
the  ap[)ellee  is  attempting  to  force  appellant  to  cease  taking  news  from 
the  latter  association,  but  to  do  so  would  work  irreparable  damage  and 
injury  to  appellant,  and  would  prevent  it  from  furnishing  needed,  im- 
portant, and  necessary  news  to  the  public,  and  would  tend  to  create  iu 
favor  of  appellee  a  monopoly. 

The  organization  of  such  a  method  of  gathering  information  and 
news  from  so  wide  an  extent  of  territory  as  is  done  by  the  appellee 
•corporation,  and  the  dissemination  of  that  news,  requires  the  expendi- 
ture of  vast  sums  of  mone}'.  It  reaches  out  to  the  various  parts  of 
the  United  States,  where  its  agents  gather  news  which  is  wired  to  it, 
and  through  it  such  news  is  received  by  the  various  important  news- 
papers of  the  country.  Scarcely  an}-  newspaper  could  organize  and 
conduct  the  means  of  gathering  the  information  that  is  centred  in  an 
association  of  the  character  of  the  appellee  because  of  the  enormous 
expense,  and  no  paper  could  be  regarded  as  a  newspaper  of  the  day 
unless  it  had  access  to  and  published  the  reports  from  such  an  associa- 
tion as  appellee.  For  news  gathered  from  all  parts  of  the  country  the 
various  newspapers  are  almost  solely  dependent  on  such  an  associa- 
tion, and  if  the}'  are  prohibited  from  publishing  it  or  its  use  is  refused 
to  them,  their  character  as  newspapers  is  destroyed  and  they  would  soon 
become  practically  worthless  publications.  The  Associated  Press,  from 
the  time  of  its  organization  and  establishment  in  business,  sold  its  news 
reports  to  various  newspapers  who  became  members,  and  the  publica- 
tion of  that  news  became  of  vast  importance  to  the  public,  so  that  pub- 
lic interest  is  attached  to  the  dissemination  of  that  news.  The  manner 
in  which  that  corporation  has  used  its  franchise  has  charged  its  business 
with  a  public  interest.  It  has  devoted  its  property  to  a  public  use,  and 
has,  in  effect,  granted  to  the  public  such  an  interest  in  its  use  that  it 
must  submit  to  be  controlled  by  the  public  for  the  common  good,  to 
the  extent  of  the  interest  it  has  thus  created  in  the  public  in  its  pri- 
vate property.  The  sole  purpose  for  which  news  was  gathered  was 
that  the  same  should  be  sold,  and  all  newspaper  publishers  desiring  to 
purchase  such  news  for  publication  are  entitled  to  purchase  the  same 
without  discrimination  against  them. 

We  hold  that  the  Circuit  Court  of  Cook  County  erred  in  entering  a 
decree  dismissing  the  bill  for  want  of  equity,  and  the  Appellate  Court 
for  the  First  District  erred  in  affirming  the  same.  The  judgment  of  the 
Appellate  Court  for  the  First  District  and  the  decree  of  the  Circuit 
Court  of  Cook  County  are  each  reversed,  and  the  cause  is  remanded  to 
the  Circuit  Court  of  Cook  County,  with  directions  to  enter  a  decree  as 
prayed  for  in  the  bill.  Reversed  and  remanded.^ 

1  Compare  :  State  v.  Associated  Press,  159  Mo.  410.  —  Ed. 


56  PEOPLE   V.   NEW   YORK   CENTRAL,   ETC.   RAILROAD. 


PEOPLE  V.  NEW  YORK   CENTRAL,  ETC.   RAILROAD    CO. 

Supreme  Court  of  New  York,  1883. 

[28  Hun,  543.1] 

Davis,  J.  .  .  .  The  petition  in  each  case  alleges  that  the  said  rail- 
road company,  since  about  the  16th  day  of  June,  1882,  "has  sub- 
stantially refused  to  discharge  its  duties  as  a  common  carrier,  and  has, 
to  a  material  degree,  suspended  the  exercise  of  its  franchises  by  re- 
fusing to  take  freight  which  has  been  offered  at  its  stations  in  the  city 
of  New  York  for  transportation,  at  the  usual  rates  and  upon  the  usual 
terms ;  "  and  that  said  railroad  company  has  refused  to  accept  and 
transportthe  greater  part  of  the  outgoing,  and  to  deliver  the  incoming 
freight  and  property  of  the  merchants  doing  business  in  the  city  of 
New  York,  who  have  relations  with  and  need  for  the  services  of  such 
railway,  and  has  refused  to  them  to  furnish  adequate  transportation  for 
the  same,  so  that  from  that  date  the  business  community  of  the  city  of 
New  York  are  unable  to  obtain  sufficient  and  adequate  transportation 
for  their  goods  on  said  railroad,  although  the}'  have  offered  tlie  same 
on  the  usual  terms  and  i*ates  of  transportation  ;  but  said  railroad  has 
uniformly  delayed  and  sometimes  peremptorily'  refused  to  receive  and 
deliver  freight,  and  to  transport  the  outgoing  freight  as  aforesaid,  and 
at  certain  points  within  the  State  has  declined  to  receive  incoming 
freight,  whereby  great  loss  and  damages  accrue  to  the  people  of  the 
State  of  New  York,  for  which  there  is  no  adequate  remedy  in  damages, 
and  that  the  trade  and  commerce  of  said  city  is  greatl}'  injured  by  the 
action  of  the  said  railroad. 

These  allegations  are  broad  enough  to  show  a  quite  general  and 
largely  injurious  refusal  and  neglect  to  perform  the  duties  of  carrier. 
The  affidavits  go  far  to  sustain  these  allegations  ;  but  it  is  not  impor- 
tant to  examine  them  minutely,  because  the  omission  of  a  demurrer 
ore  tenus  extends  to  and  admits  the  well-pleaded  averments  of  the 
petition.  Stated  ver}'  briefly,  the  affidavits  show  that,  for  about  two 
weeks,  the  respondents  failed  and  neglected  to  receive  from  three- 
quarters  to  seven-eighths  of  the  goods  offered  for  transportation  from 
the  city,  and  large  quantities  seeking  transportation  to  the  cit}- ;  and 
in  many  instances  refused  to  receive  goods  offered,  and  turned  tliem 
back  and  closed  their  gates  during  business  hours,  thus  causing  a  stop- 
page of  all  deliver}'  of  freight ;  that  in  some  instances  unusual  terms 
were  sought  to  be  imposed  as  a  condition  of  receiving  goods,  which 
■would  increase  the  risks  of  the  owner ;  that  the  refusal  to  receive  goods 
did  not  arise  from  any  unwillingness  or  inability  on  the  part  of  the 
shipper  to  pay  charges,  but  was  wholly  the  act  of  respondents  ;  that  it 
was  so  continuous  and  extensive  that  it  seriously  interfered  with  the 

1  This  case  is  abridged.  —  Ed. 


PEOPLE    V.   NEW   YOKK   CENTRAL,   ETC.    RAILROAD.  57 

business  operations  of  the  citizens  of  New  York,  deterioratecl  the 
value  of  man)-  commodities,  and  caused  a  diversion  of  trade  from  the 
cit}- ;  that  great  losses  were  caused,  and  especially  that  large  quantities 
of  perishable  goods,  b}^  reason  of  nou-delivery,  were  destroyed,  to  the 
value  of  many  thousand  dollars;  that  a  vast  amount  of  freight,  equal, 
as  estimated,  to  360,000  tons,  was  thus  detained  or  refused  carriao-e ; 
that  large  numbers  of  carmen  were  detained  in  their  efforts  to  deliver 
freight,  and  the  injury  to  that  branch  of  business  is  estimated  at  not 
less  than  $50,000,  while  tlie  aggregate  of  injuries  is  estimated  at  some 
millions.  These  are  the  substantial  facts  conceded  by  the  respondents 
at  the  Special  Term.  Surely,  it  cannot  be  doubted  that  these  facts, 
being  true  and  unexcused,  showed  a  strong  case  for  the  interference  of 
the  State. 

The  only  question  is,  whether  the  course  and  conduct  of  the  respond- 
ents was  so  far  excused  by  anything  appearing  in  the  petition  and 
affidavits  that  the  court  was  justified  in  denying  the  motion  for  the 
writ  on  its  merits,  or  in  a  wise  exercise  of  its  judicial  discretion. 

The  excuse  appears  onlj'  in  the  statements  of  the  reasons  assigned 
b)-  the  respondents  for  their  refusal  to  accept,  transport,  and  deliver 
the  freight  and  property.  In  the  petition  it  is  stated  in  these  words, 
"that  the  persons  in  their  emplo}'  handling  such  freight  refuse  to  per- 
form their  work  unless  some  small  advance,  said  to  be  three  cents  per 
hour,  is  paid  them  by  the  said  railroad  corporation.  "  The  affidavits 
show,  it  ma}-  in  short  be  said,  that  the  skilled  freight  handlers  of  the 
respondents,  who  had  been  working  at  the  rate  of  seventeen  cents  per 
hour  (or  one  dollar  and  seventy  cents  for  ten  hours),  refused  to  work 
unless  twent}-  cents  per  hour,  or  two  dollars  per  da}-  of  ten  hours, 
were  paid,  and  that  their  abandonment  of  the  work,  and  the  inefficiency 
of  the  unskilled  men  afterwards  employed,  caused  the  neglect  and 
refusal  complained  of. 

It  is  not  alleged  or  shown  that  the  workmen  committed  an}-  unlaw- 
ful act,  and  no  violence,  no  riot,  and  no  unlawful  interference  with 
other  employees  of  the  respondents  appear.  It  is  urged  in  effect  that 
the  court  should  regard  the  case  as  one  of  unlawful  duress,  caused  by 
some  breach  of  law  sufficiently  violent  to  prevent  the  reception  and 
transportation  of  freight.  There  is  nothing  in  the  papers  to  justify 
this  contention.  According  to  the  statements  of  the  case,  a  body  of 
laborers,  acting  in  concert,  fixed  a  price  for  their  labor,  and  refused 
to  work  at  a  less  price.  The  respondents  fixed  a  price  for  the  same 
labor,  and  refused  to  pay  more.  In  doing  this  neither  did  an  act 
violative  of  any  law,  or  subjecting  either  to  any  penalty.  The  respond- 
ents had  a  lawful  right  to  take  their  ground  in  respect  of  the  price  to 
be  paid,  and  adliere  to  it,  if  they  chose ;  but  if  the  consequence  of 
doing  so  were  an  inability  to  exercise  their  corporate  franchises  to  the 
great  injury  of  the  public,  they  cannot  be  heard  to  assert  that  such 
consequence  must  be  shouldered  and  borne  by  an  innocent  public,  who 
neither  directly  nor  indirectly  participated  in  their  causes. 


58  PEOPLE    V.    NEW   YOr.K   CENTRAL,   ETC.    EAILEOAD. 

If  it  had  been  shown  that  a  "  strike  "  of  their  skilled  laborers  had 
been  caused  or  compelled  b}'  some  illegal  combination  or  organized 
bod}',  which  held  an  unlawful  control  of  their  actions,  and  sought 
through  them  to  enforce  its  will  upon  the  respondents,  and  that  the 
respondents,  in  resisting  such  unlawful  efforts,  had  refused  to  obey 
unjust  and  illegal  dictation,  and  had  used  all  the  means  in  their  power 
to  employ  other  men  in  sufficient  numbers  to  do  the  work,  and  that  the 
refusal  and  neglect  complained  of  had  grown  out  of  sucli  a  state  of 
facts,  a  very  different  case  for  the  exercise  of  the  discretion  of  the 
court,  as  well  as  of  the  attorney-general,  would  have  been  presented. 
Whether  such  a  state  of  facts  could  have  been  shown  or  not  we  cannot 
judiciallj-  know.  The  present  case  must  stand  or  fall  upon  the  papers 
before  us;  and  we  are  not  to  be  swerved  from  thus  disposing  of  it  by 
any  suggestion  of  facts  not  in  the  case  which  might  lead,  if  they  ap- 
peared, to  some  other  result.  The  most  that  can  be  found  from  the 
petition  and  affidavits  is  that  the  skilled  freight  handlers  of  the  re- 
spondents refused  to  work  without  an  increase  of  wages  to  the  amount 
of  three  cents  per  hour ;  that  the  respondents  refused  to  pay  such 
increase  ;  that  the  laborers  then  abandoned  the  work,  and  that  the 
respondents  did  not  procure  other  laborers  competent  or  sufficient  in 
number  to  do  the  work,  and  so  the  numerous  evils  complained  of  fell 
upon  the  public,  and  were  continuous  until  the  people  felt  called  upon 
to  step  in  and  seek  to  remedy  them  by  proceedings  for  mandamus. 

These  facts  reduce  the  question  to  this :  Can  railroad  corporations 
refuse  or  neglect  to  perform  their  public  duties  upon  a  controversy 
with  their  employees  over  the  cost  or  expense  of  doing  them?  We 
think  this  question  admits  of  but  one  answer.  The  excuse  has  in  law 
no  validit}'.  The  duties  imposed  must  be  discharged  at  whatever  cost. 
They  cannot  be  laid  down  or  abandoned  or  suspended  without  the 
legally  expressed  consent  of  the  State.  The  trusts  are  active,  poten- 
tial, and  imperative  and  must  be  executed  until  lawfully  surrendered, 
otherwise  a  public  highway'  of  great  utilit}'  is  closed  or  obstructed 
without  any  process  recognized  by  law.  This  is  something  no  public 
officer  charged  with  the  same  trusts  and  duties  in  regard  to  other  pub- 
lic highways  can  do  without  subjecting  himself  to  mandam,us  ov  indict- 
ment. 

We  are  not  able  to  perceive  the  difficulties  that  embarrassed  the 
court  below  as  to  the  form  of  a  writ  of  mandamus  in  such  cases.  It 
is  true  the  writ  must  be  specific  as  to  the  thing  to  be  done  ;  but  the 
thing  to  be  done  in  this  case  was  to  resume  the  duties  of  carriers  of  the 
goods  and  propert}'  offered  for  transportation  ;  that  is,  to  receive,  carry, 
and  deliver  the  same  under  the  existing  rules  and  regulations  as  the 
business  had  been  accustomed  to  be  done.  There  was  no  necessity  to 
specify  what  kind  of  goods  should  be  first  received  and  carried,  or 
whose  goods,  or  indeed  to  take  an}'  notice  of  the  details  of  the  estab- 
lished usages  of  the  companies.  It  was  the  people  who  were  invoking 
the  writ  on  their  own  behalf  and  not  for  some  private  suitor,  or  to  re- 


TOLEDO,   ETC.    RY.    CO.   V.    PENNSYLVANIA   CO.  59 

dress  individual  injuries.  The  prayer  of  the  petition  indicated  the 
proper  form  of  the  writ.  Upon  the  return  to  the  writ  all  questions, 
whether  what  has  been  done  is  a  sufficient  compliance  with  its  com- 
mand, may  properly  arise  and  become  a  subject  of  further  considera- 
tion. People  ex  rel.  Green  v.  D.  and  C.  R.  R.  Co.,  58  N.  Y.  152, 
160,  161.  They  need  not  have  been  anticipated.  It  is  suggested 
that  the  time  has  now  passed  when  such  a  writ  can  be  of  any  valuable 
effect.  This  is  probably  so,  but  we  are  governed  by  the  record  in 
disposing  of  the  appeal  and  not  by   subsequently  occurring  events. 

The  appellants  labor  now  under  a  judgment  alleged  to  be  injurious 
to  the  rights  the}'  possessed  when  it  was  pronounced,  and  harmful  to 
them  as  a  precedent.  If  erroneous  they  are  entitled  to  have  that  judg- 
ment reversed,  and  to  be  indemnified,  in  the  discretion  of  the  court,  for 
the  costs  incurred  on  the  appeal  made  necessary  by  the  error. 

We  think  the  court  below  had  power  to  award  the  writ,  and  that 
upon  the  case  presented  it  was  error  to  refuse  it. 

The  order  should  be  reversed,  with  the  usual  costs,  and  an  order 
entered,  if  deemed  advisable  from  any  existing  circumstances  by  the 
attorney-general,  awarding  the  writ. 

Danifxs  and  Bradt,  JJ.,  concurred. 

Orders  reversed,  with  ten  dollars  costs  and  disbursements  in  each 
case.^ 


TOLEDO,  A.  A.  AND  N.  M.  RY.  CO.  v.  PENNSYLVANIA  CO. 
Circuit  Court  of  the  United  States,  1893. 

[54  Fed.  Rep.  746.2] 

In  equity.  Bill  by  the  Toledo,  Ann  Arbor  and  North  Michigan  Rail- 
way Company  against  Albert  G.  Blair,  Jacob  S.  Morris,  the  Pennsylva- 
nia Company,  the  Lake  Shore  and  Michigan  Southern  Railway  Company, 
and  others,  to  enjoin  respondents  from  refusing  to  extend  to  complainant 
the  same  equal  facilities  as  to  others  for  the  exchange  of  interstate 
traffic.  The  injunction  was  issued,  served  upon  the  Lake  Shore  and 
Michigan  Southern  Railway  Company,  and  brought  to  the  notice  of  its 
employees  by  publication.  Heard  on  application  by  said  company  for 
an  order  attaching  Clark,  Case,  Rutger,  and  Lennon,  its  employees,  for 
contempt  in  violating  the  injunction.     Granted  as  to  Lennon. 

Ricks,  District  Judge.  .  .  .  This  order  was  served  upon  the  several 
defendants,  and  the  Lake  Shore  and  Michigan  Southern  Railroad, 
through  its  general  superintendent,  Mr.  Canniff,  made  publication  of  the 

1  Compare:  Lake  Shore,  &c.  R.  R.  v.  Bennett,  89  Ind.  457  ;  Indianapolis,  &c.  R.  R. 
V.  Juntgen,  10  111.  App.  295 ;  Geismer  v.  Lake  Shore  &c.  R.  R.,  102  N.  Y.  563;  Hall 
V.  Pennsylvania  R.  R.,  14  Phila.  414.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


60  TOLEDO,   ETC.    RY.   CO.   V.   PENNSYLVANIA   CO. 

order  in  such  way  as  to  bring  it  to  the  attention  of  its  empIo3'ees,  and 
particularly  to  those  of  its  engineers  driving  engines  on  the  Detroit 
division,  where  the  interchange  of  cars  witli  the  Ann  Arbor  road  was 
frequent.  On  tlie  18th  of  March  an  atlidavit  made  by  the  superin- 
tendent of  the  Michigan  division  of  the  Lalie  Shore  and  Michigan 
Southern  Raih'oad  was  filed,  alleging  that  certain  of  its  employees, 
while  in  the  service  of  said  company,  and  with  full  notice  and  knowl- 
edge of  the  injunction  theretofore  made,  had  refused  to  obey  tlie  orders 
of  the  court,  and  upon  that  affidavit  an  application  was  made  bj-  said 
company  for  an  attachment  to  issue  against  the  employees  so  named, 
"as  being  in  contempt  of  the  restraining  order  of  the  court."  The 
court  declined  to  make  the  order  in  the  form  applied  for,  but  directed 
one  to  be  entered  requiring  the  engineers  and  firemen  named  to  appear 
in  court  forthwith,  and  show  cause  why  they  should  not  be  attached  for 
contempt.  This  is  the  usual  and  well-established  practice  in  this  dis- 
trict, as  numerous  precedents  in  the  last  ten  years  will  show. 

Before  proceeding  to  pass  upon  the  evidence  as  to  whether  the  men 
now  before  the  court  under  charges  for  contempt  are  guill}'  or  not,  it 
may  be  profitable  to  consider  the  general  principles  of  law  applicable 
to  the  duties  with  which  the  accused  were  charged  by  the  orders  issued 
to  them  and  to  their  employers.  The}'  were  in  the  employ  of  the  de- 
fendant the  Lake  Shore  and  Michigan  Southern  Railroad  at  the  time 
the  orders  in  this  case  were  made,  compelling  it  to  receive  from  the  Ann 
Arbor  road  all  interstate  freight  it  might  tender.  The  testimony  shows 
that  the  terras  of  this  order  were  made  known  to  the  employees  gen- 
erally, and  that  they  were  thoroughl}'  advised  of  its  scope  and  manda- 
tor}' provisions.  That  their  employer  was  obligated,  both  under  the 
general  provisions  of  the  interstate  commerce  law  and  under  this  order 
of  the  court,  to  receive  and  liaul  all  interstate  freight,  must  have  been 
known  to  them.  They  must  also  be  held  to  have  known  that  the  pen- 
alties of  the  law  were  severe  in  case  their  employer  violated  either  the 
law  or  the  order  of  the  court.  Holding  to  that  employer,  so  engaged 
in  this  great  public  undertaking,  the  relation  they  did,  they  owed  to 
him  and  to  the  public  a  higher  duty  than  though  their  service  had  been 
due  to  a  private  person.  They  entered  its  service  with  full  knowledge 
of  the  exacting  duties  it  owed  to  the  public.  They  knew  that  if  it 
failed  to  comply  with  the  laws  in  any  respect  severe  penalties  and  losses 
would  follow  for  such  neglect.  An  implied  obligation  was  therefore 
assumed  by  the  employees  upon  accepting  service  from  it  under  such 
conditions  that  they  would  perform  their  duties  in  such  manner  as  to 
enable  it  not  onl}'  to  discharge  its  obligations  faithfull}',  but  also  to  pro- 
tect it  against  irreparable  losses  and  injuries  and  excessive  damages  by 
an}'  acts  of  omission  on  their  part.  One  of  these  implied  conditions 
on  their  behalf  was  that  the}'  would  not  leave  its  service  or  refuse  to 
perform  their  duties  under  circumstances  when  such  neglect  on  their 
part  would  imperil  lives  committed  to  its  care,  or  the  destruction  of 
property  involving  irreparable  loss  and  injury,  or  visit  upon  it  severe 


TOLEDO,   ETC.   RY.   CO.   V.   PENNSYLVANIA  CO.  61 

penalties.  In  ordinary  conditions  as  between  employer  and  employee, 
tlie  privilege  of  the  latter  to  quit  the  former's  service  at  his  option 
cannot  be  prevented  by  restraint  or  force.  The  remedy  for  breach  of 
contract  ma}-  follow  to  the  employer,  but  the  employee  has  it  in  his 
power  to  arbitrarily  terminate  the  relations,  and  abide  the  consequences. 
But  these  relative  rights  and  powers  may  become  quite  different  in  the 
case  of  the  employees  of  a  great  public  corporation,  charged  by  the  law 
with  certain  great  trusts  and  duties  to  the  public.  An  engineer  and 
fireman,  who  start  from  Toledo  with  a  train  of  cars  filled  with  pas- 
sengers destined  for  Cleveland,  begin  that  journey  under  contract  to 
drive  their  engine  and  draw  the  cars  to  the  destination  agreed  upon. 
Will  it  be  claimed  that  tliis  engineer  and  fireman  could  quit  their  em- 
ployment when  the  train  is  part  way  on  its  route,  and  abandon  it  at 
some  point  where  the  lives  of  the  passengers  would  be  imperilled,  and 
the  safety  of  the  property  jeopardized  ?  The  simple  statement  of  the 
^proposition  carries  its  own  condemnation  with  it.  The  very  nature  of 
their  service,  involving  as  it  does  the  custody  of  human  life,  and  the 
safety  of  millions  of  propert}',  imposes  upon  them  obligations  and  duties 
commensurate  with  the  character  of  the  trusts  committed  to  them. 
The}'  represent  a  class  of  skilled  laborers,  limited  in  number,  W'hose 
places  cannot  always  be  supplied.  The  engineers  on  the  Lake  Shore 
and  Michigan  Southern  Railroad  operate  steam  engines  moving  over  its 
different  divisions  2,500  cars  of  freight  per  day.  These  cars  carry 
supplies  and  material,  upon  the  deliver}'  of  which  the  labor  of  tens  of 
thousands  of  mechanics  is  dependent.  They  transport  the  products  of 
factories  whose  output  must  be  speedil}'  carried  away  to  keep  their  em- 
ployees in  labor.  Tlie  suspension  of  work  on  the  line  of  such  a  vast 
railroad,  by  the  arbitrary  action  of  the  body  of  its  engineers  and  fire- 
men, would  paralyze  the  business  of  the  entire  country,  entailing  losses, 
and  bringing  disaster  to  thousands  of  unoffending  citizens.  Contracts 
would  be  broken,  perishable  property  destroyed,  the  travelling  public 
embarrassed,  injuries  sustained,  too  man}'  and  too  vast  to  be  enumer- 
ated. All  these  evil  results  would  follow  to  the  public  because  of  the 
arbitrary  action  of  a  few  hundred  men,  who,  without  any  grievance  of 
their  own,  without  any  dispute  with  their  own  employer  as  to  wages  or 
hours  of  service,  as  appears  from  the  evidence  in  this  case,  quit  their 
employment  to  aid  men,  it  may  be,  on  some  road  of  minor  importance, 
who  have  a  difference  with  their  employer  which  they  fail  to  settle  by 
ordinary  methods.  If  such  ruin  to  the  business  of  employers,  and  such 
disasters  to  thousands  of  the  business  public,  who  are  helpless  and  inno- 
cent, is  the  result  of  conspiracy,  combination,  intimidation,  or  unlawful 
acts  of  organizations  of  employees,  the  courts  have  the  power  to  grant 
partial  relief,  at  least  by  restraining  employees  from  committing  acts  of 
violence  or  intimidation,  or  from  enforcing  rules  and  regulations  of 
organizations  which  result  in  irremediable  injuries  to  their  employers 
and  to  the  public.  It  is  not  necessary,  for  the  purposes  of  this  case,  to 
undertake  to  define  with  greater  certainty  the  exact  relief  which  such 


62  SAVANNAH   AND   OGEECHEE   CANAL   CO.   V.   SHUMAN. 

cases  may  properly  invoke  ;  but  that  the  necessities  growing  out  of  the 
vast  and  rapidl}'  multiplying  interests  following  our  extending  railway 
business  make  new  and  correspondingly-  efficient  measures  for  relief 
essential  is  evident,  and  the  courts,  in  the  exercise  of  their  equity  juris- 
diction, must  meet  the  emergencies,  as  far  as  possible,  within  the  limits 
of  existing  laws,  until  needed  additional  legislation  can  be  secured.^ 

Granted  as  to  Lennon. 


SAVANNAH   AND   OGEECHEE  CANAL  CO.   v.  SHUMAN. 

Supreme  Court  of  Georgia,  1893. 

[91  Ga.  400.] 

Lumpkin,  J.  1.  The  16th  section  of  the  charter  of  the  Savannah, 
Ogeechee  and  Altamaha  Canal  Company,  Dawson's  Compilation,  p.  97, 
declares,  "that  the  said  corporation  shall  be  obliged  to  keep  the  said 
canals  and  locks  in  good  and  sufficient  order,  condition,  and  repair, 
and  at  all  times  free  and  open  to  the  navigation  of  boats,  rafts,  and 
other  water  crafts  ;  and  for  the  transportation  of  goods,  merchandise, 
and  produce,"  etc.  Counsel  on  both  sides  referred  us  to  the  above 
charter  as  that  of  the  plaintiff  in  error,  which  is  designated  in  the  record 
as  the  "  Savannah  and  Ogeechee  Canal  Co.,"  and  is  also  thus  desig- 
nated in  the  case  of  Habersham  et  al.  against  this  corporation  in  26  Ga. 
665.  We  therefore  presume,  without  investigation,  that  the  corporate 
name  of  this  company  was  at  some  time  properly  amended  by  striking 
out  "Altamaha"  and  placing  "and"  before  "  Ogeechee."  It  is  appar- 
ent, without  argument,  that  under  this  charter  it  is  the  imperative  duty 
of  this  company  to  keep  its  canal  in  a  navigable  condition,  and  accord- 
ing to  the  principle  of  the  ruling  of  this  court  in  the  case  above  cited, 
the  performance  of  this  duty  may  be  enforced  by  mandamus. 

2.  It  appears  from  the  record  that  the  defendant  in  error  is  engaged 
in  the  lumber  business,  and  for  several  3'ears  had  used  the  canal  in 
question  for  transporting  timber  and  other  things,  and  that  because  of 
its  unuavigable  condition  he  was  compelled  to  ship  his  timber  by  a 
more  circuitous  and  expensive  route.  It  is  clear,  therefore,  that  he  is 
Speciall}'  interested  in  the  navigation  for  which  this  canal  was  char- 
tered, and  that  b}'  the  failure  of  the  compan}-  to  keep  the  canal  nav- 
igable he  sustains  a  special  damage  in  which  the  general  public  does 
not  share.  Under  these  circumstances  he  was,  in  our  opinion,  entitled 
to  the  writ  of  tnandatiius  to  compel  a  performance  by  the  company  of 
the  dut}'  above  mentioned.     There  ma}'  be  authorities  to  the  contrary, 

1  Compare:  Trust  Co.  i'.  No.  Pacific  R.  U.,  60  Fed.  80-3  ;  U.  S.  v.  Elliot,  62  Fed.  801  ; 
Ke  Phelan,  62  Fed.  803  ;  Arthur  v.  Oakes,  63  Fed.  310 ;  In  re  Debs,  158  U.  S.  564.— Ed. 


SAVANNAH   AND   OGEECHEE   CANAL   CO.   V.   SHUMAN.  63 

but  the  true  law  of  this  question  seems  to  be  in  favor  of  the  doctrine 
that  a  private  person  may,  by  mandamus^  enforce  the  performance  by 
a  corporation  of  a  public  duty  as  to  matters  in  which  he  has  a  special 
interest.  See  2  Morawetz  on  Priv.  Corp.  §  1132  ;  4  Am.  &  P^ng.  Enc. 
of  Law,  289,  291,  and  cases  cited.  In  the  case  reported  in  2Gth  Ga., 
supra^  the  relief  sought  was  granted  at  the  instance  of  private  per- 
sons, but  it  does  not  appear  that  the  point  was  specially  made  as  to 
their  right,  as  such,  to  apply  for  the  writ  of  mandamus,  the  position 
then  taken  by  the  canal  company  being  that  this  writ  would  not  lie 
at  all. 

3.  In  Moody  v.  Fleming,  4  Ga.  115,  this  court  held  that,  except  in 
a  case  of  clear  legal  right,  the  writ  of  mandamus  was  a  discretionary 
remed}'.  This  view  was  followed  in  Harwell  &  Wife  v.  Armstrong 
et  al.,  11  Ga.  328,  and  ii)  Loyless  v.  Howell,  15  Ga.  554,  injunction 
cases,  in  which  this  court,  by  citing  the  case  first  above  mentioned, 
evidently  intended  to  put  cases  of  m,andam,us  and  of  injunction  upon 
the  same  footing  as  to  the  question  of  discretion.  The  granting,  or 
refusing,  of  injunctions  has  always  been  regarded  as  discretionary,  and 
it  seems  quite  clear  that  in  cases  of  mandamus,  it  lies  ver}-  largely 
within  the  discretion  of  the  presiding  judge  as  to  whether  or  not  the 
writ  will,  in  a  given  case,  be  made  absolute  ;  and  in  order  to  reverse  a 
judgment  in  a  case  of  this  kind,  it  would  be  necessary  to  show  that  the 
discretion  of  the  court  was  abused. 

In  the  present  case,  the  corporation  answered  that  it  had  no  funds, 
nor  any  means  of  obtaining  such  ;  and  also,  that  it  would  not  be  prof- 
itable to  operate  the  canal  if  it  were  put  in  navigable  condition.  For 
the  purposes  of  the  decision  below  this  answer  was  taken  as  true,  the 
question  of  its  sufficienc}^  being  raised  by  demurrer. 

So  long  as  the  corporation  retains  its  franchise,  it  will  not  be  allowed 
to  urge  as  an  excuse  for  failing  to  perform  any  duty  required  of  it  by 
its  charter,  that  the  same  would  be  unprofitable.  It  cannot  consistently 
keep  the  franchise  and  refuse  to  perform  the  duties  incident  thereto  for 
the  mere  reason  that  such  performance  would  be  unremunerative.  If 
the  rights,  privileges,  and  franchises  granted  by  the  charter  are,  in 
connection  with  the  corresponding  duties  thereby  imposed,  no  longer 
desirable,   the  company  should  simply  surrender  the  charter. 

As  to  the  validity  of  the  other  reason  alleged  for  failing  to  put  the 
canal  in  a  navigable  condition,  viz. :  that  the  company  is  without  funds, 
and  without  means  of  obtaining  funds,  the  question  is  by  no  means  so 
clear.  The  writer  was  inclined  to  hold  that,  under  section  3200  of  the 
code  (providing  that  mandamus  will  not  be  granted  when  it  is  manifest 
that  the  writ  would,  for  anj'  cause,  be  nugatory  or  fruitless),  the  answer 
of  the  company  presented  a  good  reason  for  refusing  in  this  case  to 
make  the  writ  absolute.  After  some  reflection,  however,  I  have  yielded 
to  the  better  judgment  of  my  brethren,  and  concluded  to  agree  with 
them  in  holding  that  the  entire  matter  may  be  safely  left  to  the  discre- 
tion of  the  circuit  judge.     While  it  is  quite  certain  that  if  the  company 


64  STATE  EX   REL.   V.   DODGE    CITY,   ETC.    RAILWAY. 

has  no  funds  now,  nor  any  means  of  obtaining  them,  and  remains  per- 
manentl3'  in  this  condition,  compliance  with  the  judge's  final  order  will 
be  impossible,  so  far  as  the  corporation  itself  is  concerned,  there  may- 
be a  change  in  the  present  condition  of  things,  and  the  officers  of  the 
company  may  be  able  to  find  some  wa}-  to  raise  monej-  in  order  to  obey 
the  mandate  of  the  court.  At  any  rate,  they  should  make  a  bona  fide 
effort  to  do  so.  If,  because  of  the  want  of  means,  the}'  cannot  comply 
with  the  writ,  and  if,  after  due  diligence,  they  remain  unable  to  procure 
the  necessary  means  for  this  purpose,  and  make  these  things  appear 
to  the  court  in  an}'  proceeding  for  contempt  which  may  be  instituted 
against  them,  we  apprehend  the  presiding  judge  would  take  great  care 
to  see  that  no  injustice  or  hardship  was  imposed  upon  them,  and  cer- 
tainly would  not  inflict  punishment  for  a  failure  to  do  a  thing  impossible 
of  accomplishment.  This  matter  is  not  now  directly  before  us,  and  we 
leave  the  question  thus  raised  to  be  dealt  with  by  the  judge  of  the  court 
below  when  it  arises,  if  it  ever  does.  Judgment  a-ffirmed} 


STATE  EX  REL.  LITTLE  v.  DODGE  CITY,  MONTEZUMA  AND 
TRINIDAD  RAILWAY  CO. 

Supreme  Court  of  Kansas,  1894. 

[53  Kan.  329.] 

Horton,  C.  J.  This  proceeding  has  been  commenced  in  this  court, 
not  for  the  purpose  of  compelling  the  Dodge  City,  Montezuma  and 
Trinidad  Railway  Company  or  any  of  the  defendants  to  operate  the 
line  of  that  railway  in  Ford  and  Gray  Counties,  or  any  part  thereof, 
but  merely  to  require  the  defendants  to  repair  and  relay  certain  por- 
tions of  the  track  and  roadbed  of  the  railway  company.  A  railway 
company  may  be  compelled  by  mandamus  to  perform  the  public  duties 
specifically  and  plainly  imposed  upon  the  corporation ;  and,  therefore, 
we  have  no  doubt  of  the  power  of  this  court,  in  a  proper  case,  to  com- 
pel a  company  to  operate  its  road,  and  for  that  purpose  to  compel  the 
replacement  of  its  track  torn  up  in  violation  of  its  charter.  The  State 
V.  Railway  Co.,  33  Kans.  176  ;  City  of  Potwin  Place  w.  Topeka  Ry. 
Co.,  51  Kan.  609  ;  U.  P.  Ry.  Co.  v.  Hall,  91  U.  S.  343  ;  Rex  v.  8.  &  W. 
Ry.  Co.,  2  Barn.  &  Aid.  646.  But  the  granting  of  a  writ  of  man- 
damus  rests  somewhat  in  the  discretion  of  the  court.  City  of  Potwin 
Place  V.  Topeka  Ry.  Co.,  supra. 

The  Montezuma  railway  company  is  insolvent.    It  has  no  cars  or 

1  Compare:  In  re  E.  R.,  17  N.  B.  667;  R.  v.  S.  W.  R.  R.,  2  B,  &  A.  646;  Pacific 
R.  R.  V.  Hall,  91  U.  S.  343.  — Ed. 


STATE   EX   REL.    V.   DODGE   CITY,   ETC.    RAILWAY.  65 

engines.  Its  line  of  road  has  not  been  operated  for  many  months. 
The  road  cannot  l)e  operated  except  at  a  great  loss.  The  railway 
company  is  not  able  to  operate  it,  and  has  no  funds  or  property  which 
can  be  applied  to  the  payment  of  operating  expenses.  A.  T.  Soule, 
the  promoter  of  the  railway  company,  has  expended  over  $200,000  in 
the  construction  and  operation  of  the  road  without  any  returns.  All 
of  its  property  was  sold,  or  attempted  to  be  sold,  to  the  IMock-Pollak 
company  for  $25,000  only.  The  venture  of  the  promoter  has  been 
very  unsuccessful  to  him.  His  experience,  and  the  other  parties  invest- 
ing, in  constructing  and  operating  this  railway  has  been  most  unfortu- 
nate. No  one  connected  with  the  railway  corporation  has  realized  any 
personal  benefit  from  any  bond,  mortgage,  or  subsidy  of  the  road. 
The  Rock  Island  road,  which,  by  an  arrangement  with  the  iMontezuma 
company,  ran  its  trains  over  the  road  from  the  time  of  its  completion 
until  May,  1893,  and  which  has  better  facilities  for  operating  the  road 
than  any  other  compan}'  or  person,  will  not  take  the  road  as  a  gift  and 
operate  it.  It  seems  to  be  conclusively  shown  that  all  the  receipts  to 
be  derived  from  operating  the  road  will  not  pay  the  operating  expenses, 
not  taking  into  account  the  repairs  of  the  road  and  the  taxes. 

The  contention  on  the  part  of  the  plaintiff  is,  that  as  the  railway 
was  sold  to  E.  F.  Kellogg  for  "Wilson  Soule  bv  a  receiver,  and  not  by 
the  sheriff  of  Ford  County,  the  sale  is  absolutely  void.  If  this  be  true, 
then  there  is  no  legal  duty  upon  the  part  of  Wilson  Soule  to  repair  or 
operate  the  road.  If,  however,  the  sale  is  not  absolutely  void,  we  do 
not  think,  upon  the  showing  made,  that  Wilson  Soule,  as  a  private  per- 
son, ouglit  to  be  compelled  to  operate  the  road.  The  Block-PoUak 
Iron  Company  cannot,  under  its  conditional  purcliase  of  the  super- 
structure, be  compelled  to  repair  or  operate  the  road.  There  is  no 
legal  dut}'  upon  any  of  the  other  defendants  to  repair  the  road.  There- 
fore, the  question  is,  whether  the  court  will  compel,  or  attem[)t  to  com- 
pel, the  railwa}'  company,  a  bankrupt  corporation,  to  relay  the  track 
and  repair  the  roadbed.  The  court  will  not  make  a  useless  or  futile 
order.  It  will  not  do  a  vain  thing.  The  order  prayed  for  should  only 
be  issued  in  the  interest  of  the  public.  If  the  track  is  rei)laced,  there 
is  no  reasonable  pi'obability  that  the  road  will  be  or  can  be  operated. 
If  a  railway  vvill  not  pay  its  mere  oi)erating  expenses,  tlie  public  has  Hi  tie 
interest  in  the  operation  of  the  road  or  in  its  being  kept  in  repair. 
Mor.  Priv.  Cor.  1119;  Commonwealth  c.  Fitchburg  Ry.  Co.,  12  Gray, 
180  ;  0.  &  M.  Ry.  Co.  r.  People,  30  Am.  &  Eng.  Ry.  Cases  [111.],  509  ; 
People  V.  A.  &  Vt.  Ry.  Co.,  24  N.  Y.  261. 

The  average  life  of  cedar  ties  —  the  kind  used  on  this  road  —  is  from 
three  to  five  years.  All  the  ties  laid  in  1888  will  soon  be  so  much  de- 
cayed as  to  be  worthless.  A  large  part  were  worthless  when  the  track 
was  taken  up.  If  the  track  were  relaid,  tlie  road  would  be  in  no 
reasonable  condition  to  be  used,  unless  new  ties  were  furnished,  and 
these  in  a  few  years  would  again  become  decayed  and  useless.  The 
use  of  the  road  was  abandoned  before  any  part  of  the  track  was  torn 


66        STATE  EX  EEL.  V.    CONSUMERS  GAS  TRUST  CO. 

up.  If  the  track  were  replaced,  it  would  be  of  no  immediate  public 
benefit  —  possibly-  of  no  future  benefit  —  because,  if  the  railwaj-  is  not 
operated,  the  mere  existence  of  a  road,  not  in  use,  is  not  beneficial  to 
any  one. 

The  peremptory  writ  pra3-ed  for  will  be  denied,  with  costs. 

All  the  justices  concurring.-' 


STATE  EX  REL.  WOOD  v.  CONSUMERS   GAS   TRUST   CO. 
Supreme  Court  of  Indiana,   1901. 

[157  Ind.  345.2] 

Mandamus  b}'  the  State,  on  relation  of  Ann  E.  Wood,  against  the 
Consumers  Gas  Trust  Company-  to  compel  defendant  to  permit  relatrix 
to  use  natural  gas  from  its  main.  From  a  judgment  for  defendant, 
plaintiff  appeals.  Reversed. 

Hadley,  J.  .  .  .  The  things  requested  and  commanded  of  the  ap- 
pellee were  to  lay  a  service-pipe  from  its  main  in  Bellefontaine  Street 
to  the  property'  line  in  front  of  the  relatrix's  house,  and  to  permit  her 
to  use  the  gas.  The  mandate  is  not  to  furnish  the  relatrix  with  an 
adequate  or  an}'  definite  amount  of  gas,  but  the  obvious  force  and 
limitations  of  the  request,  and  order,  are  to  require  the  appellee  to 
furnish  her  with  the  necessary  means,  and  permit  her  to  use  the  gas 
upon  the  same  terms  that  other  inhabitants  of  the  cit\'  are  permitted 
to  use  it.  Is  it  the  legal  duty  of  appellee  to  do  these  things  ?  Man- 
damus  is  a  proper  remed}'  to  compel  appellee  to  famish  gas  to  the  re- 
latrix if  it  is  shown  that  she  is  entitled  to  it.  Portland,  &c.  Co.  v.  State 
ex  rel,  135  Ind.  54,  21  L.  R.  A.  639. 

The  appellee  is  a  corporation  authorized  by  the  legislature  to  exer- 
cise the  right  of  eminent  domain  (Acts  1889,  p.  22),  and  licensed  b}^ 
the  cit\'  of  Indianapolis  to  lay  pipes  through  its  streets  and  alleys  for 
the  transportation  and  distribution  of  natural  gas  to  its  customers. 
These  rights,  which  involve  an  element  of  sovereignt3-,  and  which  can 
exist  only  bj-  grant  from  the  public,  are  rooted  in  the  principle  that 
their  exercise  will  bestow  a  benefit  upon  that  part  of  the  public,  in 
whose  behalf  the  grant  is  made,  and  the  beuefit  received  by  the  citizens 
is  the  adequate  consideration  for  the  right  and  convenience  surren- 
dered by  them.  The  grant  thus  resting  upon  a  public  and  reciprocal 
relation,  imposes  upon  the  appellee   the  legal  obligation  to  serve  all 

1  Compare  :  In  re  Bristol,  &c.  "R.  R.,  3  Q.  B.  D.  10;  City  v.  Topeka  R.  R.,  33  Kans. 
176;  C.  V.  Fitchhurjj  K.  R.,  12  Gray,  180;  P.  v.  Vt.  R.  R.,  24  N.  Y.  261.  — Ed. 

2  This  case  is  abridged.  —  Ed. 


STATE    EX    REL.    V.    CONSUMERS   GAS   TRUST   CO.  67 

members  of  the  public  contributing  to  its  asserted  right,  impartiall}', 
an;l  to  permit  all  such  to  use  gas  who  have  made  the  necessary  arrange- 
ments to  receive  it,  and  apply  therefor,  and  who  i)ay,  or  olfer  to  pay, 
the  price,  and  abide  the  reasonable  rules  and  regulations  of  the  com- 
pany. Portland,  &c.  Co.  v.  State  ex  rel,  135  Ind.  5-4  ;  Coy  r.  Indian- 
apolis Gas  Co.,  146  Ind.  ()i')0,  oG  L.  R.  A.  535  ;  Haugen  v.  Albina.  &c.  Co., 
21  Ore.  411,  28  Pac.  244,  14  L.  R.  A.  424;  People  /'.  ManhaUan  Gas 
Co.,  45  Barb.  136  ;  Crumlej-  t?.  Watauga  Water  Co.,  99  'iVnn.  420, 
41  S.  W.  1058  ;  American,  &c.  Co.  v.  Slate,  46  Neb.  194,  64  N.  W. 
711,  30  L.  R.  A.  447  ;  State  ex  rel.  v.  Butte  City  Water  Co.,  18  Mont. 
199,  44  Pac.  966,  32  L.  R.  A.  697,  56  Am.  St.  574. 

But,  without  controverting  the  law  as  declared  in  the  foregoing  cases, 
or  claiming  exemption  from  the  rule,  it  is  answered  as  a  justification 
for  denying  the  relatrix  the  use  of  gas,  that  the  corporation  was  or- 
o-anized  as  a  voluntary  enterprise  in  the  general  interest  of  the  people 
of  Indianapolis  ;  that  its  pur[)ose  was  not  the  making  of  money  for 
any  one,  but  to  furnish  gas  to  consumers  in  the  city  at  the  lowest  pos- 
sible rate,  and  that  the  supply  of  gas  the  corporation  has  on  hand,  or 
that  it  may  possibly  procure,  is  insufficient  to  supply  what  customers  it 
has  now  connected  with  its  mains,  in  severely  cold  weather,  and  that 
to  permit  the  relatrix  to  use  gas  would  be  to  further  reduce  the  already 
insufficient  supply.  Will  ihese  facts  relieve  the  appellee  of  its  duty 
to  permit  the  relatrix  to  use  its  gas  ?  If  they  will,  then  it  must  be 
true  that  the  relatrix  is  not  entitled  to  share  in  the  gas  furnished  by 
appellee  to  the  inhal)itants  of  the  city,  because  her  participation  will 
reduce  the  possible  supply  below  the  full  requirements  of  those  already 
being  served. 

It  is  proper  to  observe  that  the  present  consumers  of  appellee's  gas 
are  not  here  complaining  of  the  quantity  of  gas  received  by  them,  or 
protesting  against  the  admission  of  the  relatrix  to  a  share  of  the  sup- 
ply, and  it  is  difficult  to  see  how  the  appellee,  while  continuing  to  assert 
and  exercise  its  extraordinary  rights,  may  set  up  its  own  default  or 
probable  default  to  others  as  a  legal  excuse  for  the  non-performance  of 
its  duty  to  the  relatrix. 

The  legal  effect  of  the  answer  is  that  the  relatrix  shall  have  no  gas 
because  her  neighbors,  in  common  right,  have  none  to  spare.  It  is  ad- 
mitted, because  not  denied,  that  the  relatiix  is  a  member  of  that  part 
of  the  public  which  appellee  has  engaged  to  serve.  As  such  she  has 
borne  her  part  of  the  public  burdens.  She  has  rendered  her  share 
of  the  consideration.  Bellefontaine  Street  in  front  of  her  house  has 
been  dug  up  and  her  property  made  servient  to  the  use  of  appellee  in 
laying  its  pipes,  and  in  carrying  forward  its  business,  and  her  right  to 
use  the  gas,  and  to  share  in  the  public  benefit,  thus  secured,  whatever 
it  may  amount  to,  is  equal  to  the  right  of  any  other  inhabitant  of  the 
city.  The  right  to  gas  is  iield  in  common  by  all  those  abutting  on  the 
streets  in  which  appellee  has  laid  its  pipes,  or  it  is  held  of  right  by 
none.     The  legislature    alone    can  authorize  the  doing  of  the  things 


&8  STATE   EX    EEL.    V.   CONSUMERS    GAS    TEUST   CO. 

done  by  appellee,  and  this  body  is  prohibited  b}'  the  fundamental  law 
from  granting  a  sovereign  power  to  be  exercised  for  the  benefit  of  a 
class,  or  for  the  benefit  of  an}-  part  of  the  public  less  than  the  whole 
residing  within  its  range.  Cooley's  Con.  Lim.  (Cth  ed.),  651,  and 
cases  cited. 

Appellee's  contract  is  with  the  State,  and  its  extraordinary  powers 
are  granted  in  consideration  of  its  engagement  to  bring  to  the  conimu- 
nit}'  of  its  operations  a  public  benefit ;  not  a  benefit  to  a  few,  or  to 
favorites,  but  a  benefit  equally  belonging  to  every  citizen  similarly 
situated  who  may  wish  to  avail  himself  of  his  privilege,  and  prepare  to 
receive  it.  There  can  be  no  such  thing  as  priority,  or  superiority,  of 
right  among  those  who  possess  the  right  in  common.  That  the  bene- 
ficial agenc}'  sliall  fall  short  of  expectation  can  make  no  difference  in 
the  right  to  participate  in  it  on  equal  terms.  So  if  appellee  has  found 
it  impossible  to  procure  enough  gas  fully  to  supply  all,  this  is  no  suffi- 
cient reason  for  permitting  it  to  say  that  it  will  deliver  all  it  has  to 
o-ne  class  to  the  exclusion  of  another  in  liiie  situation.  It  is  immaterial 
that  appellee  was  organized  to  make  money  for  no  one,  but  to  supply 
gas  to  tiie  inhal)itants  of  Indianapolis  at  the  lowest  possible  rate.  It 
has  pointed  to  us  no  special  charter  privilege,  and  under  the  law  of  its 
creation,  certain  it  is,  that  its  unselfish  purpose  will  not  relieve  it  of 
its  important  duty  to  the  pul)lic.  The  principle  here  announced  is  not 
new.  It  is  as  old  as  the  common  law  itself.  It  lias  arisen  in  a  multi- 
tude of  cases  affecting  railroad,  navigation,  telegraph,  telephone,  water, 
gas,  and  other  like  companies,  and  has  been  man}*  times  discussed  and 
decided  by  the  courts,  "  and  no  statute  has  been  deemed  necessary  to 
aid  the  courts  in  holding  that  when  a  person  or  company  undertakes 
to  supply  a  demand  which  is  '  affected  with  a  public  interest,'  it  must 
supply  all  alike,  who  are  like  situated,  and  not  discriminate  in  favor 
of,  nor  against  any."  4")  Cent.  L.  J.  278;  Haugen  v.  Albina,  &c. 
Co..  21  Ore.  411  ;  Olmsted  r.  Proprietors,  &c.,  47  N.  J.  L.  311;  Stern 
V.  Wilkesbarre  Gas  Co.,  2  Kulp.  499  ;  Chicago,  &c.  Co.  r.  People,  56 
111.  365;  8  Am.  Rep.  690;  Nebraska  Tel.  Co.  v.  State,  55  Neb.  627, 
634  ;  Watauga  Water  Co.  v.  Wolfe,  99  Tenn.  429,  41  S.  W.  1060,  63 
Am.  St.  841 ;  State  ex  rel.  v.  Delaware,  &c.  R.  Co.,  48  N.  J.  L.  55, 
2  Atl.  803,  57  Am.  Rep.  543. 

In  a  further  material  sense  the  discrimination  asserted  by  the  answer 
becomes  injurious  to  the  relatrix.  It  is  a  matter  of  common  knowledge 
that  natural  gas  is  a  cheap  and  convenient  fuel,  and  for  many  reasons 
is  eagerly  sought  by  those  who  may  reasonably  obtain  it.  It  is  there- 
fore, of  like  knowledge,  that  in  a  community  where  it  is  supplied  to 
some  premises,  and  denied  to  others,  the  effect  is  to  enhance  the  value 
of  such  i)arcels  as  have  it,  by  making  it  more  desirable  and  profitable 
to  occupy  them,  and  to  depreciate  the  value  of  such  parcels  as  are  ex- 
cluded from  its  use.  It  is  very  clear  that  appellee  may  not,  under  the 
guise  of  administering  a  public  benefit,  exercise  a  public  power,  to  take 
the  property  of  one  and  confer  it  upon  another. 


STATE    EX    KEL.    V.   CONSUMERS    GAS    TRUST   CO.  69 

The  principal  argument  of  appellee's  counsel  is,  that  not  having  suf- 
ficient gas  to  supph-  its  present  customers,  and  having  exhausted  ever}' 
available  means  for  increasing  its  suppl}-,  it  is  therefore  impossible  for 
it  to  perform  its  public  dut}',  and  munddinus  will  not  lie  to  compel  an 
attempt  to  perform  a  duty  impossible  of  performance.  We  concede 
in  the  fullest  terms  that  mandamus  will  not  lie  to  require  an  attempt 
to  do  a  thing  shown  to  be  impossible.  But  this  is  not  the  question  we 
have  before  us.  The  relatrix  is  not  asking,  nor  the  court  commanding 
that  the  company  attempt  to  increase  its  supply  of  gas.  The  relatrix 
is  onl}'  seeking  to  be  permitted  to  share  in  the  quantity  of  gas  the  corn- 
pan}'  has  at  its  command,  whatever  that  ma)*  be,  on  the  same  terms 
that  others  are  permitted  to  use  it.  There  is  in  the  request  of  the  re- 
latrix nothing  unreasonable,  and  nothing  impossible  of  performance. 
The  whole  question  comes  to  this.  The  appellee  under  public  grant 
for  the  dispensation  of  a  public  good,  has  taken  possession  of  certain 
streets  and  alle3's  in  Indianapolis  for  the  distribution  and  sale  of  natural 
gas  to  those  abutting  on  its  lines.  The  relatrix  owning  a  lot  abutting 
on  one  of  the  appellee's  lines  erected  thereon  a  dwelling-house,  and 
upon  the  faith  of  being  permitted  to  use  the  gas  has  piped  her  house, 
and  constructed  her  heating  apparatus  of  a  form,  suitable  only  to  the 
use  of  natural  gas  as  a  fuel,  which  will  be  worthless  if  natural  gas  is 
denied  her.  She  has  in  common  with  other  abutters  been  subjected 
to  the  inconvenience  of  having  the  street  in  front  of  her  house  dug  up 
and  had  her  property  occupied  with  the  compan3's  pipes.  She  has 
made  all  necessary  arrangements  to  receive  the  gas,  has  tendered  ap- 
pellee its  usual  charges,  has  offered  to  abide  b}"  its  reasonable  rules  and 
regulations,  and  w-e  perceive  neither  legal  reason,  nor  natural  justice, 
in  denying  her  the  rights  accorded  to  those  of  her  neighbors  who  have 
contributed  in  the  same  way  to  appellee's  enterprise.  The  second 
paragraph  of  answer  was  insufficient,  and  the  demurrer  thereto  should 
have  been  sustained. 

Judgment  reversed,  with  instructions  to  sustain  the  demurrer  to  the 
second  paragraph  of  the  return  to  the  alternative  writ  of  mandate. 


70  ALL^UTT   V.   lA'GLIS. 

ALLNUTT  V.   INGLIS. 
King's  Bench,   1810. 

[12  East,  527.1] 

Lord  Ellenborough,  C.  J.  The  question  on  this  record  is  whether 
the  London  Dock  Compan}-  have  a  right  to  insist  upon  receiAing  wines 
into  their  warehouses  for  a  hire  and  reward  arbitrary'  and  at  tlieir  will 
and  pleasure,  or  whether  they  were  hound  to  receive  them  there  for  a 
reasonable  reward  onh".  There  is  no  doubt  that  the  general  principle 
is  favored  both  in  law  and  justice,  that  every  man  may  fix  what  price  he 
pleases  upon  his  own  propert}'  or  the  use  of  it :  but  if,  for  a  particular 
purpose,  the  public  have  a  right  to  resort  to  his  premises  and  make  use 
of  them,  and  he  have  a  monopoly  in  them  for  that  purpose,  if  he  will 
take  the  benefit  of  that  monopoly',  he  must  as  an  equivalent  perform  the 
duty  attached  to  it  on  reasonable  terms.  The  question  then  is,  whether 
circumstanced  as  this  compan}'  is  by  the  combination  of  the  warehous- 
ing act  with  the  act  b}'  which  they  were  originally  constituted,  and  with 
the  actual!}'  existing  state  of  things  in  the  port  of  London,  whereby  they 
alone  have  the  warehousing  of  these  wines,  the}'  be  not,  according  to 
the  doctrine  of  Lord  Hale,  obliged  to  limit  themselves  to  a  reasonable 
compensation  for  such  warehousing?  And  according  to  him,  wherever 
the  accident  of  time  casts  upon  a  part\'  the  benefit  of  having  a  legal 
monopoly  of  lan'ling  goods  in  a  public  port,  as  where  he  is  the  owner 
of  the  onl}'  wharf  authorized  to  receive  goods  which  happens  to  be 
built  in  a  port  newly  erected,  he  is  confined  to  take  reasonable  com- 
pensation only  for  the  use  of  the  wharf.  Lord  Hale  puts  the  case  either 
way  ;  where  the  king  or  a  subject  have  a  public  wharf  to  which  all 
persons  must  come  who  come  to  that  port  to  unlade  their  goods,  either 
"  because  they  are  the  wharfs  only  licensed  b}'  the  queen,  or  because 
there  is  no  other  wharf  in  that  port,  as  it  mav  fall  out :  in  that  case 
(he  says)  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  whaifage,  &c.  :  neither  can  the}'  be  enhanced  to  an  immod- 
erate rate  ;  but  the  duties  must  be  reasonable  and  moderate,  though 
settled  by  the  king's  license  or  charter."  And  then  he  assigns  this  rea- 
son, "for  now  the  whaif  and  crane  and  other  conveniences  are  affected 
with  a  public  interest,  and  they  cease  to  be  juris  p^'ivati  only."  Then 
were  the  company's  warehouses  Jmju's  privatl  only  at  this  time?  The 
legislature  had  said  that  these  goods  should  only  be  warehoused  there ; 
and  the  act  was  passed  not  merely  for  the  benefit  of  the  company,  but 
for  the  good  of  trade.  The  first  clause  (43  Geo.  3,  c.  132,  the  general 
warehousing  act)  says  that  it  would  greatly  tend  to  the  encouragement 
of  the  trade  and  commerce  of  G.  B. ,  and  to  the  accommodation  of  mer- 

^  This  case  is  abridged.  —  Ed. 


MUNN    V.   ILLINOIS.  71 

chants  and  others,  if  certain  goods  were  permitted  to  be  entered  and 
landed  and  secured  in  the  port  of  London  without  paj-ment  of  duties 
at  the  time  of  the  first  entry  :  and  then  it  says  that  it  shall  be  lawful 
for  the  importer  of  certain  goods  enumerated  in  table  A.  to  secure  the 
same  in  the  West  India  dock  warehouses  :  and  then  b}'  sect.  2  other 
goods  enumerated  in  table  B.  may  in  like  manner  be  secured  in  the 
London  dock  warehouses.  And  there  are  no  other  places  at  present 
lawfully-  authorized  for  the  warehousing  of  wines  (such  as  were  im- 
ported in  this  case)  except  these  warehouses  within  the  I^ondon  dock 
premises,  or  such  others  as  are  in  the  hands  of  this  com^jany.  But  if 
those  other  warehouses  were  licensed  in  other  hands,  it  would  not  cease 
to  be  a  monopoly  of  the  privilege  of  bonding  there,  if  the  right  of  the 
public  were  still  narrowed  and  restricted  to  bond  their  goods  in  tliose 
particular  warehouses,  though  they  might  be  in  the  hands  of  one  or  two 
others  besides  the  company's.  Here  then  the  company's  warehouses 
were  invested  with  the  monopoly  of  a  public  privilege,  and  therefore 
the}'  must  b}'  law  confine  themselves  to  take  reasonable  rates  for  the 
use  of  them  for  that  purpose.  If  the  crown  should  hereafter  think  it 
advisable  to  extend  the  privilege  more  generally  to  other  persons  and 
places,  so  far  as  that  the  public  will  not  be  restrained  from  exercising 
a  choice  of  warehouses  for  the  purpose,  the  compan}'  may  be  enfran- 
chised from  the  restriction  which  attaches  upon  a  monopoly :  but  at 
present,  while  the  public  are  so  restricted  to  warehouse  their  goods 
with  them  for  the  purpose  of  bonding,  they  must  submit  to  that  restric- 
tion ;  and  it  is  enough  that  there  exists  in  the  place  and  for  the  com- 
modit}'  in  question  a  victual  mo7iopoly  of  the  warehousing  for  this 
purpose,  on  which  the  principle  of  law  attaches,  as  laid  down  by  Lord 
Hale  in  the  passage  referred  to,  which  includes  the  good  sense  as  well 
as  the  law  of  the  subject.  "Wiiether  the  company  be  bound  to  continue 
to  apply  their  warehouses  to  this  purpose  may  be  a  nice  question,  and 
I  will  not  say  to  what  extent  it  may  go  ;  but  as  long  as  their  ware- 
houses are  the  onlj'  places  which  can  be  resorted  to  for  this  purpose, 
they  are  bound  to  let  the  trade  have  the  use  of  them  for  a  reasonable 
hire  and  reward. 


MUNN  V.  ILLINOIS. 
Supreme  Court  of  the  United  States,  1876. 

[94  U.  S.  113.1] 

On  the  twenty-ninth  day  of  June,  1872,  an  information  was  filed  in 
the  Criminal  Court  of  Cook  County,  111.,  against  Munn  &  Scott,  alleg- 
ing that  they  were,  on  the  twenty -eighth  day  of  June,  1872,  in  the  cit}' 

1  This  case  is  abridged. —  Ed. 


72  MUNX    V.    ILLINOIS. 

of  Chicago,  in  said  county,  the  managers  and  lessees  of  a  public  ware- 
house, known  as  the  '•  North-western  P^levator,"  in  which  they  then 
and  there  stored  grain  in  bulk,  and  mixed  tlie  grain  of  different  owners 
together  in  said  warehouse  ;  that  tlie  warehouse  was  located  in  tlie  city 
of  Chicago,  which  contained  more  than  one  hundretl  thousand  inhab- 
itants ;  that  they  unlawfully  transacted  the  business  of  public  ware- 
housemen, as  aforesaid,  without  procuriuLj  a  license  from  the  Circuit 
Court  of  said  countj',  permitting  them  to  transact  business  as  public 
warehousemen,  under  the  laws  of  the  State. 

To  this  information  a  plea  of  not  guilty  was  interposed. 

From  an  agreed  statement  of  facts,  made  a  part  of  the  record,  it 
appears  that  Munn  &  Scott  leased  of  the  owner,  in  18 G2,  the  ground 
occupied  b}'  the  "North-western  Elevator,"  and  erected  thereon  the 
grain  warehouse  or  elevator  in  that  year,  with  their  own  capital  and 
means;  that  they  ever  since  carried  on,  in  said  elevator,  the  business 
of  storing  and  handling  grain  for  hire,  for  which  the}'  charged  and 
received,  as  a  compensation,  the  rates  of  storage  which  had  been, 
fi'om  year  to  year,  agreed  upon  and  established  by  the  different  eleva- 
tors and  warehouses  in  the  city  of  Chicago,  and  published  in  one  or 
more  newspapers  printed  in  said  city,  in  the  month  of  January  in  each 
year,  as  the  established  rates  for  the  year  then  next  ensuing  such  pub- 
lication. On  the  twent^'-eighth  day  of  June,  1872,  Munn  &  Scott 
were  the  managers  and  proprietors  of  the  grain  warehouse  known  as 
'•The  North-westei'n  Elevator,"  in  Chicago,  111.,  wherein  grain  of  dif- 
ferent owners  was  stored  in  bulk  and  mixed  together  ;  and  they  then 
and  there  carried  on  the  business  of  receiving,  storing,  and  delivering 
grain  for  hire,  without  having  taken  a  license  from  the  Circuit  Court  of 
Cook  County,  permitting  them,  as  managers,  to  transact  business  as 
public  warehousemen,  and  without  having  filed  with  the  clerk  of  the 
Circuit  Court  a  bond  to  the  people  of  the  State  of  Illinois,  as  I'equired 
l>y  sects.  3  and  4  of  the  act  of  April  25,  1871.  The  city  of  Chicago 
then,  and  for  more  than  two  years  before,  had  more  than  one  hundred 
thousand  inhabitants.  Munn  &  Scott  had  stored  and  mixed  grain  of 
different  owners  together,  only  by  and  with  the  express  consent  and 
permission  of  such  owners,  or  of  the  consignee  of  such  grain,  they 
having  agreed  that  the  compensation  should  be  the  published  rates  of 
storage. 

Munn  &  Scott  had  complied  in  all  respects  with  said  act,  except  in 
two  particulars  :  ^first,  they  had  not  taken  out  a  license,  nor  given  a 
bond,  as  required  by  sects.  3  and  4  ;  and,  second,  they  had  charged  for 
storage  and  handling  grain  the  rates  established  and  published  in  Jan- 
uary, 1872,  which  were  higher  than  those  fixed  by  sect.  15. 

The  defendants  were  found  gnilty,  and  fined  SlOO. 

The  judgment  of  the  Criminal  Court  of  Cook  County  having  been 
affirmed  by  the  Supreme  Court  of  the  State,  Munn  &  Scott  sued  out 
this  writ,  and  assign  for  error:  — 

1.  Sects.  3,  4,  5,  and  15  of  the  statute  are  unconstitutional  and  void. 


MUNN    V.    ILLINOIS.  73' 

2.  Said  sections  are  repugnant  to  the  third  clause  of  sect.  8  of  art 
1,  and  tlie  sixth  clause  of  sect.  9,  art.  1,  of  the  Constitution  of  the 
United  States,  and  to  the  Fifth  and  Fourteenth  Amendments. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  general 
assembh'  of  Illinois  can,  under  the  limitations  u[)on  the  legislative 
pou'er  of  the  States  imposed  b}-  the  Constitution  of  tlie  United  States, 
fix  by  law  the  maximum  of  charges  for  the  storage  of  grain  in  ware- 
houses at  Chicago  and  other  places  in  the  State  having  not  less  than 
one  hundred  thousand  inhabitants,  "  in  which  grain  is  stored  in  bulk, 
and  in  which  the  grain  of  different  owners  is  mixed  togetlier,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of  different 
lots  or  parcels  cannot  be  accuratel}'  preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

1.  To  that  part  of  sect.  8,  art.  1,  of  the  Constitution  of  the  United 
States  which  confers  upon  Congress  the  power  "to  regulate  commerce 
with  foreign  nations  and  among  the  several  States  ;  " 

2.  To  tliat  part  of  sect.  9  of  the  same  article  which  provides  that 
"  no  preference  shall  be  given  by  an}'  regulation  of  commerce  or  rev- 
enue to  the  ports  of  one  State  over  those  of  another  ; "  and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  State  shall 
""  ileprive  an}'  person  of  life,  lil)erty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws." 

We  will  consider  the  last  of  these  objections  first. 

Every  statute  is  presumed  to  be  constitutional.  The  courts  ought 
not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly  so.  If 
there  is  doubt,  the  expressed  will  of  the  legislature  should  be  sustained. 

The  Constitution  contains  no  definition  of  the  word  "  deprive,  "  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
tiierefore,  it  is  necessar}'  to  ascertain  the  effect  which  usage  has  given 
it,  wlien  emploj'ed  in  tlie  same  or  a  like  connection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution  of 
tlie  United  States,  as  a  limitation  upon  the  powers  of  the  States,  it  is 
old  as  a  principle  of  civilized  government.  It  is  found  in  Magna 
Charta,  and,  in  substance  if  not  in  form,  in  nearly  or  quite  all  the  con- 
stitutions that  have  been  from  time  to  time  adopted  l)y  the  several 
States  of  the  Union.  By  the  Fifth  Amendment,  it  was  introduced  into 
the  Constitution  of  the  United  States  as  a  limitation  upon  the  powers 
of  the  national  government,  and  b}^  the  Fourteenth,  as  a  guaranty 
against  any  encroachment  upon  an  acknowledged  right  of  citizenship 
by  the  legislatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their  govern- 
ment. They  retained  for  the  purposes  of  Government  all  the  powers  of 
the  British  Parliament,  and  through  their  State  constitutions,  or  other 
forms  of  social  compact,  undertook  to  give  practical  effect  to  such  as 


74  MUNN    V.    ILLINOIS. 

they  deemed  necessar}-  for  the  common  good  and  the  security  of  life  and 
propert}'.  All  the  powers  which  they  retained  they  committed  to  their 
respective  States,  unless  in  express  terms  or  by  implication  reserved  to 
themselves.  Subsequently,  when  it  was  found  necessary  to  establish  a 
national  government  for  national  purposes,  a  part  of  the  powers  of  the 
States  and  of  the  people  of  the  States  was  granted  to  the  United  States 
and  the  people  of  the  United  States.  This  grant  operated  as  a  further 
limitation  upon  the  powers  of  tlie  States,  so  tliat  now  the  governments 
of  the  States  possess  all  the  powers  of  the  Pai-liament  of  England,  ex- 
cept such  as  have  been  delegated  to  the  United  States  or  reserved  b}- 
the  people.  The  reservations  b}'  the  people  are  shown  in  the  prohibi- 
tions of  tlie  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts  with 
some  rights  or  privileges  which,  as  an  individual  not  affected  by  his 
relations  to  others,  lie  miglit  retain.  "  A  body  politic,"  as  aptl}'  de- 
fined in  the  preamble  of  the  Constitution  of  Massachusetts,  "is  a 
social  compact  by  which  the  whole  people  covenants  with  each  citizen, 
and  each  citizen  with  the  whole  people,  that  all  shall  be  governed  b}- 
certain  laws  for  the  common  good."  This  does  not  confer  power  upon 
the  whole  people  to  control  rights  which  are  purely  and  exclusivel}' 
private,  Tliorpe  v.  R.  &  B.  Railroad  Co.,  27  Vt.  143  ;  but  it  does  author- 
ize the  establishment  of  laws  requiring  each  citizen  to  so  conduct  him- 
self and  so  use  his  own  property,  as  not  unnecessarily  to  injure  another. 
This  is  the  very  essence  of  government,  and  has  found  expression  in 
the  maxim  sic  utere  tuo  ut  alienum  non  Iceclas.  From  this  source 
come  the  police  powers,  which,  as  was  said  b}'  Mr.  Chief  Justice  Taney 
in  the  License  Cases,  5  How.  583,  "are  nothing  more  or  less  than  the 
powers  of  government  inherent  in  ever}'  sovereignt}',  .  .  .  that  is  to  say, 
.  .  .  the  power  to  govern  men  and  things."  Under  these  powers  the 
government  regulates  the  conduct  of  its  citizens  one  towards  another, 
and  tlie  manner  in  which  each  shall  use  his  own  property,  when  such 
regulation  becomes  necessary  for  the  public  good.  In  their  exercise  it 
has  l)een  customary  in  England  from  time  immemorial,  and  in  this  coun- 
tr}'  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing 
to  fix  a  maximum  of  charge  to  be  made  for  seivices  rendered,  accom- 
modations furnislied,  and  articles  sold.  To  this  da}',  statutes  are  to  be 
found  in  many  of  the  States  upon  some  or  all  these  sul)jects  ;  and  we 
think  it  has  never  yet  been  successfully  contended  that  such  legisla- 
tion came  within  any  of  the  constitutional  proliibitions  against  inter- 
ference with  private  pro[)erty.  With  the  Fiftli  Amendment  in  force. 
Congress,  in  1820,  conferred  power  upon  the  city  of  Washington  "  to 
regulate  .  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweep- 
ing of  chimneys,  and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the 
weight  and  quality  of  bread,"  3  Stat.  587,  sect.  7  ;  and,  in  1848,  "  to 
make  all  necessary  regulations  res|)ecting  hackney  carriages  and  the 
rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagon- 


MUNN   V.    ILLINOIS.  75 

ers,  carmen,  and  draymen,  and  the  rates  of  commission  of  auctioneers," 
9  Stat.  224,  sect.  2. 

From  tliis  it  is  apparent  that,  down  to  tlie  time  of  the  adoption  of 
tlie  Fourteenth  Amendment,  it  was  not  supposed  tliat  statutes  regulat- 
ing the  use,  or  even  the  price  of  the  use,  of  private  pro[)erty  neces- 
sarily deprived  an  owner  of  his  property  without  due  process  of  law. 
Under  some  circumstances  they  may,  but  not  under  all.  The  amend- 
ment does  not  change  the  law  in  tliis  particular:  it  simply  prevents  the 
States  from  doing  that  which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within  and 
what  without  its  operative  effect.  Looking,  then,  to  the  common  law, 
from  whence  came  the  right  which  the  Constitution  protects,  we  find 
that  when  private  property  is  "  affected  w'ith  a  public  interest,  it  ceases 
to  be  juris  privati  only."  This  was  said  b}'  Lord  Chief  Justice  Hale 
more  than  two  hundred  years  ago,  in  his  treatise  JJe  Portihus  JIaris, 
1  Ilarg.  Law  Tracts,  78,  and  has  been  accepted  without  objection  as 
an  essential  element  in  the  law  of  property  ever  since.  Property  does 
become  clothed  with  a  public  interest  when  used  in  a  manner  to  make 
it  of  public  consequence,  and  afifect  the  communit}*  at  large.  "When, 
therefore,  one  devotes  his  property  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and 
must  submit  to  be  controlled  In-  the  public  for  the  common  good,  to 
the  extent  of  the  interest  he  has  thus  created.  He  may  withdraw  his 
grant  by  discontinuing  the  use  ;  but,  so  long  as  he  maintains  the  use, 
he  must  submit  to  the  control. 

Enough  has  alreadj'  been  said  to  show  that,  when  private  property 
is  devoted  to  a  public  use,  it  is  subject  to  public  regulation.  It 
remains  onh'  to  ascertain  whether  the  warehouses  of  these  plaintiffs 
in  error,  and  the  business  which  is  carried  on  there,  come  within  the 
operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  contained 
in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in  error. 
From  these  it  appears  that  "the  great  producing  region  of  the  West 
and  North-west  sends  its  grain  by  water  and  rail  to  Chicago,  where  the 
greater  part  of  it  is  shipped  by  vessel  for  transportation  to  the  sea- 
board by  the  Great  Lakes,  and  some  of  it  is  forwarded  by  railway'  to 
the  Eastern  ports.  .  .  .  Vessels,  to  some  extent,  are  loaded  in  the 
Chicago  harbor,  and  sailed  through  the  St.  Lawrence  directlv  to 
Europe.  .  .  .  The  quantity  [of  grain]  received  in  Chicago  has  made  it 
the  greatest  grain  market  in  the  world.  This  business  has  created  a 
demand  for  means  by  which  the  immense  quantity  of  grain  can  be 
handled  or  stored,  and  these  have  been  found  in  grain  warehouses, 
which  are  commonly  called  elevators,  because  the  grain  is  elevated 
from  the  boat  or  car,  b}-  machinery  operated  b}'  steam,  into  the  bins 
prepared  for  its  reception,  and  elevated  from  the  bins,  by  a  like  process, 
into  the  vessel  or  car  which  is  to  cany  it  on.   ...  In  this  way  the 


76  MUNN    V.    ILLINOIS. 

largest  traffic  between  the  citizens  of  the  countr}'  north  and  west  of 
Chicago  and  the  citizens  of  the  countr\-  lying  on  the  Atlantic  coast 
north  of  Washington  is  in  grain  which  passes  tlirough  the  elevators  of 
Cliicago.  In  this  wa}-  the  trade  in  grain  is  carried  on  by  the  inhabi- 
tants of  seven  or  eight  of  the  great  States  of  the  West  with  four  or 
five  of  the  States  lying  on  the  sea-shore,  and  forms  the  largest  part  of 
inter-state  commerce  in  these  States.  The  grain  warehouses  or  ele- 
vators in  Chicago  are  immense  structures,  holding  from  300,000  to 
1,000,000  bushels  at  one  time,  according  to  size.  They  are  divided 
into  bins  of  large  capacity  and  great  strength.  .  .  .  They  are  located 
with  the  river  harbor  on  one  side  and  the  railway-  tracks  on  the  other ; 
and  the  grain  is  run  through  them  from  car  to  vessel,  or  boat  to  car,  as 
maj-  be  demanded  in  the  course  of  business.  It  has  been  found  im- 
l)ossible  to  preserve  each  owner's  grain  separate,  and  this  has  given 
rise  to  a  system  of  inspection  and  grading,  by  which  the  grain  of  dif- 
ferent owners  is  mixed,  and  receipts  issued  for  the  number  of  bushels 
which  are  negotiable,  and  redeemable  in  like  kind,  upon  demand.  This 
mode  of  conducting  the  business  was  inaugurated  more  than  twenty 
years  ago,  and  has  grown  to  immense  proportions.  The  railwavs  have 
found  it  impracticable  to  own  such  elevators,  and  public  policy  forbids 
the  transaction  of  such  business  by  the  carrier  ;  the  ownership  has, 
therefore,  been  bj'  private  individuals,  who  have  embarked  their  capi- 
tal and  devoted  their  industry  to  such  business  as  a  private  pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  "  as  have  been  from  year  to  year  agreed  upon  and 
established  by  the  different  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or  more 
newspapers  printed  in  said  city,  in  the  month  of  January  in  each  year, 
as  the  established  rates  for  the  year  then  next  ensuing  such  publication." 
Thus  it  is  apparent  that  all  the  elevating  facilities  through  wliich  these 
vast  productions  '"of  seven  or  eight  great  States  of  the  West"  must 
pass  on  the  way  'Ho  four  or  five  of  the  States  on  the  seashore"  may 
be  a  "virtual  "  monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeei)er,  or  the  wharf- 
inger, or  the  baker,  or  the  cartman,  or  the  hackney-coachmun,  pursues 
a  [lublic  employment  and  exercises  "a  sort  of  public  offi(;e,"  these 
plaintiffs  in  error  do  not.  The}-  stand,  to  use  again  the  language  of 
their  counsel,  in  the  very  "gateway  of  commerce,"  and  take  toll  from 
all  who  pass.  Their  business  most  certainly  "  tends  to  a  common 
charge,  and  is  become  a  thing  of  public  interest  and  use."  Every  bushel 
of  grain  for  its  passage  "  pays  a  toll,  which  is  a  common  charge,"  and, 
therefore,  according  to  Lord  Hale,  every  such  warehouseman  '"ought 
to  be  under  public  regulation,  viz.,  that  he  . .  .  tak"  but  reasonable  toll." 


MUXN    V.    ILLINOIS.  77 

Certainly,  if  any  business  can  be  clothed  "-with  a  public  interest,  and 
cease  to  be  juris  jn-icati  onh^,"  this  1ms  been.  It  may  not  be  made 
so  by  the  operation  of  the  Constitution  of  Illinois  or  this  statute,  but 
it  is  b}-  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some  reason, 
the  people  of  Illinois,  when  they  revised  their  Constitution  in  1870, 
saw  fit  to  make  it  the  duty  of  the  general  assembly  to  pass  laws  ••  for 
the  protection  of  producers,  shii)pcrs,  and  receivers  of  grain  and  prod- 
uce," art.  13,  sect.  7  ;  and  by  sect.  5  of  the  same  article,  to  require  all 
railroad  companies  receiving  and  transporting  grain  in  bulk  or  other- 
wise to  deliver  the  same  at  any  elevator  to  which  it  might  be  consigned, 
tliat  could  be  reached  by  any  track  that  was  or  could  be  used  by  such 
compau}',  and  that  all  railroad  companies  should  permit  connections  to 
be  made  with  their  tracks,  so  that  any  public  warehouse,  &c.,  might  be 
reached  by  the  cars  on  their  railroads.  This  indicates  very  clearly 
that  during  the  twenty  years  in  which  this  peculiar  business  had  been 
assuming  its  present  "immense  proportions,"  something  had  occurred 
which  led  the  whole  body  of  the  people  to  suppose  that  remedies  such 
as  are  usually  employed  to  pi-event  abuses  by  virtual  monopolies  might 
not  be  inappropriate  here.  For  our  purposes  we  must  assume  that,  if 
a  state  of  facts  could  exist  that  would  justify  such  legislation,  it  aelu- 
allv  did  exist  when  the  statute  now  under  consideration  was  passed. 
For  us  the  question  is  one  of  power,  not  of  expediency.  If  no  state 
of  circumstances  could  exist  to  justify  such  a  statute,  then  we  may 
declare  this  one  void,  because  in  excess  of  the  legislative  power  of  the 
State.  But  if  it  could,  we  must  presume  it  did.  Of  the  propriety  of 
legislative  interference  within  the  scope  of  legislative  power,  the  legis- 
lature is  the  exclusive  judge. 

Neitlier  is  it  a  matter  of  any  moment  that  no  precedent  can  be 
found  for  a  statute  precisely  like  this.  It  is  conceded  that  the  busi- 
ness is  one  of  recent  origin,  that  its  growth  has  been  rapid,  and  that  it 
is  already  of  great  importance.  And  it  must  also  be  conceded  that  it  is 
a  business  in  which  the  whole  public  has  a  direct  and  positive  interest. 
It  presents,  therefore,  a  case  for  the  application  of  a  long-known  and 
well-established  principle  in  social  science,  and  this  statute  simply  ex- 
tends the  law  so  as  to  meet  this  new  development  of  commercial  prog- 
ress. There  is  no  attempt  to  compel  these  owners  to  grant  the  public 
an  interest  in  their  property,  but  to  declare  their  obligations,  if  they 
use  it  in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regulations 
complained  of  were  adopted.  What  they  did  was  from  the  beginning 
subject  to  the  power  of  the  body  politic  to  require  them  to  conform  to 
such  regulations  as  might  be  established  by  the  proper  authorities  for 
the  common  good.  They  entered  upon  their  business  and  provided 
their.selves  with  the  means  to  carry  it  on  subject  to  this  condition.  11 
thev  did  not  wisii  to  submit  themselves  to  such  interference,  they  should 


78  MUNN    V.    ILLINOIS. 

not  have  clothed  the  public  with  an  interest  in  their  concerns.  The 
same  principle  applies  to  them  that  does  to  the  proprietor  of  a  hackney- 
carriage,  and  as  to  him  it  has  never  been  su[)posed  that  he  was  exem[;t 
from  regulating  statutes  or  ordinances  because  he  had  purchased  his 
horses  and  carriage  and  established  his  business  before  the  statute  or 
the  ordinance  was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  tliougli  it  be  clotiied  with 
a  public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a 
legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise.  In 
countries  where  the  common  law  prevails,  it  has  l)een  customary  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reason- 
able compensation  under  such  circumstances,  or,  perhai)s  more  properl}' 
speaking,  to  fix  a  maximum  beyond  which  any  charge  made  would  be 
unreasonable.  Undoubtedly,  in  mere  private  contracts,  relating  to 
matters  in  which  the  public  has  no  interest,  what  is  reasonable  must 
be  ascertained  judicially.  But  this  is  because  the  legislature  has  no 
control  over  such  a  contract.  So,  too,  in  matters  which  do  affect  the 
public  interest,  and  as  to  which  legislative  control  may  be  exercised, 
if  there  are  no  statutory-  regulations  upon  the  subject,  the  courts  must 
determine  what  is  reasonable.  The  controlling  fact  is  the  power  to 
regulate  at  all.  If  that  exists,  the  right  to  establish  the  maximum  of 
charge,  as  one  of  the  means  of  regulation,  is  implied.  In  fact,  the 
common-law  rule,  which  requires  the  charge  to  be  reasonable,  is  itself 
a  regulation  as  to  price.  Without  it  the  owner  could  make  his  rates  at 
will,  and  compel  the  public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  ma}'  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest,  in 
anv  rule  of  the  common  law.  That  is  only  one  of  the  forms  of  munic- 
ipal law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  b}'  the  common  law  cannot  be  taken  away 
without  due  process  ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will,  or  even  at  the  whim,  of  the  legislature,  unless 
prevented  by  constitutional  limitations.  Indeed,  the  great  office  of 
statutes  is  to  remedy  defects  in  the  common  law  as  they  are  developed, 
and  to  adapt  it  to  the  changes  of  time  and  circumstances.  To  limit 
the  rate  of  charge  for  services  rendered  in  a  public  employment,  or  for 
the  use  of  the  propert}'  in  which  the  public  has  an  interest,  is  only 
changing  a  regulation  which  existed  before.  It  establishes  no  new 
principle  in  the  law,  but  only  gives  a  new  effect  to  an  old  one. 

We  know  that  this  is  a  power  which  ma}'  be  abused  ;  but  that  is  no 
argument  against  its  existence.  For  protection  against  abuses  by 
legislatures  the  people  must  resort  to  the  polls,  not  to  the  courts. 

After  what  has  already  been  said,  it  is  unnecessar}'  to  refer  at  length 
to  tlie  effect  of  the  other  provision  of  the  Fourteenth  Amendment  which 
is  relied  upon,  viz.,  that  no  State  shall  ''  deny  to  any  person  within  its 


PEOPLE   V.   BUDD,  79 

jurisdiction  the  equal  protection  of  tlie  laws."  Certainly,  it  cannot  be 
claimed  that  this  prevents  tlie  State  from  regulating  the  fares  of  hack- 
men  or  the  charges  of  draymen  in  Chicago,  unless  it  does  tlie  same 
thing  in  every  otlier  place  within  its  jurisdiction.  But,  as  has  been 
seen,  tlie  power  to  regulate  the  business  of  warehouses  depends  upon 
the  same  principle  as  the  power  to  regulate  hackmen  and  draymen,  and 
what  cannot  be  done  in  the  one  case  in  this  particular  cannot  be  done 
in  the  other.  Judgment  ajfirmed.^ 

Mr.  Justice  Field  and  Mr.  Justice  Strong  dissented. 


PEOPLE  V.   BUDD. 
Court  of  Appeals,  New  York,  1889. 

[117  iV.  Y.  1.2] 

Appeal  from  judgment  of  the  general  term  of  the  Superior  Court  of 
the  city  of  Buffalo  entered  upon  an  order  made  December  31,  1888, 
which  affirmed  a  judgment  of  a  criminal  term  of  said  court  entered 
upon  a  verdict,  convicting  defendant  of  a  misdemeanor  in  violating  the 
provisions  of  the  act  (chap.  581,  Laws  of  1888)  known  as  the  Elevator 
Act. 

The  material  facts  are  stated  in  the  opinion. 

Decided  Octol^er  15,  1889. 

Andrews,  J.  The  main  question  upon  this  record  is  whether  the 
legislation  fixing  the  maximum  charge  for  elevating  grain,  contained 
in  the  act  (chapter  581,  Laws  1888),  is  valid  and  constitutional. 
The  act,  in  its  first  section,  fixes  tlie  maximum  charge  for  receiving, 
weigliing,  and  discharging  grain  b}-  means  of  floating  and  stationary 
elevators  and  warehouses  in  this  State  at  five-eighths  of  one  cent  a 
bushel,  and  for  trimming  and  shovelling  to  the  leg  of  the  elevator, 
in  the  process  of  handling  grain  by  means  of  elevators,  "lake  ves- 
sels, or  propellers,  the  ocean  vessels  or  steamships,  and  canal  boats," 
shall,  the  section  declares,  only  be  required  to  pay  the  actual  cost. 
The  second  section  makes  a  violation  of  the  act  a  misdemeanor, 
punishable  by  fine  of  not  less  than  $250.  The  third  section  gives  a 
civil  remedy  to  a  party  injured  b}'  a  violation  of  the  act.  The  fourth 
section  excludes  from  the  operation  of  the  act  any  village,  town, 
or   city  having   less    than    130,000    population.      The   defendant,    the 

1  Compare:  Davis  v.  State,  68  Ala.  58;  Breechbill  v.  Randall,  102  Ind.  528  ;  Nash 
V.  Paige,  80  Ky.  539  ;  Dock  Co.  v.  Garrity,  115  111.  155  ;  State  r.  Edwards,  86  Me.  105  ; 
U.  R.  V.  Stock  Yard  Co.,  45  N.  J.  Eq.  50 ";  Ryan  v.  Terminal  Co.,  102  Teun  119;  Bar- 
rington  v.  Dock  Co.,  15  Wash.  175.  —  Ed. 

2  This  case  is  abridged.  —  Ed. 


80  PEOPLE   V.   BUDD. 

manager  of  a  stationary  elevator  in  the  city  of  Buffalo,  on  the  19th 
day  of  September,  1888,  exacted  from  the  Lehigh  Valley  Transpor- 
tation Company,  for  elevating,  raising,  and  discharging  a  cargo  of 
corn  from  a  lake  propeller  at  his  elevator,  the  sum  of  one  cent  a 
bushel,  and  for  shoveling  to  the  leg  of  the  elevator  the  carrier  was 
charged  and  compelled  to  pay  $4  for  each  thousand  bushels.  The 
shoveling  of  grain  to  the  leg  of  an  elevator  at  the  port  of  Buffalo  is 
now  performed,  pursuant  to  an  arrangement  made  since  the  passage 
of  the  act  of  1888,  by  a  body  of  men  known  as  the  Shovelers'  Union, 
who  pay  the  elevator  $1.75  a  thousand  bushels  for  the  use  of  the 
steam-shovel,  a  part  of  the  machinery  connected  with  the  elevator, 
operated  by  steam,  and  who  for  their  services,  and  the  expense  of  the 
steam-shovel,  charge  the  carrier  for  each  thousand  bushels  of  grain 
shoveled  the  sum  of  §4.  The  defendant  was  indicted  for  a  violation 
of  the  act  of  1888.  The  indictment  contains  a  single  count,  charging 
a  violation  of  the  first  section  in  two  particulars,  viz.,  in  exacting 
more  than  the  statute  rate  for  elevating  the  cargo,  and  exacting  more 
than  the  actual  cost  for  shoveling  the  grain  to  the  leg  of  the 
elevator.   .   .   . 

The  question  is  whether  the  power  of  the  legislature  to  regulate 
charges  for  the  use  of  property,  and  the  rendition  of  services  con- 
nected with  it,  depend  in  every  case  upon  the  circumstance  that  the 
owner  of  the  property  has  a  legal  monopoly  or  privilege  to  use  the 
property  for  the  particular  purpose,  or  has  some  special  protection 
from  the  government,  or  some  peculiar  benefit  in  the  prosecution  of 
his  business.  Lord  Hale,  in  the  treatises  De  Portibus  Maris  and 
De  Jure  Maris,  so  largely  quoted  from  in  the  opinions  in  the  Munn 
Case,  used  the  language  that  when  private  property  is  "  affected 
with  a  public  interest  it  ceases  to  be  juy^is  privatl  only,"  in  assign- 
ing the  reason  why  ferries  and  public  wharves  should  be  under  public 
regulation,  and  only  reasonable  tolls  charged.  The  right  to  establish 
a  ferry  was  a  franchise,  and  no  man  could  set  up  a  ferry,  although 
he  owned  the  soil  and  landing  places  on  both  sides  of  the  stream, 
without  a  charter  from  the  king,  or  a  prescription  time  out  of  mind. 
The  franchise  to  establish  ferries  was  a  royal  prerogative,  and  the 
grant  of  the  king  was  necessary  to  authorize  a  subject  to  establish  a 
public  ferry,  even  on  his  own  pi-emises.  "When  we  recur  to  the 
origin  and  purpose  of  this  prerogative,  it  will  be  seen  that  it  was 
vested  in  the  king  as  a  means  by  which  a  business  in  which  the  whole 
community  were  interested  could  be  regulated.  In  other  words,  it 
was  simply  one  mode  of  exercising  a  prerogative  of  government  — 
that  is  to  say,  through  the  sovereign  instead  of  through  Parliament 
—  in  a  matter  of  public  concern.  This  and  similar  prerogatives  were 
vested  in  the  king  for  public  purposes,  and  not  for  his  private  ad- 
vantage or  emolument.  Lord  Kexyon  in  Rorke  i\  Dayrell,  4  Term 
R.  410,  said:  "  The  prerogatives  [of  the  crownj  are  not  given  for  the 


PEOPLE    V.    BUDD.  81 

personal  advantage  of  the  king,  but  they  are  allowed  to  exist  because 
they  are  beneScial  to  the  subject;  "  and  it  is^said  in  Chitty  on  Prerog- 
atives (page  4):  "The  splendor,  rights,  aud  power  of  the  crown 
were  attached  to  it  for  the  benefit  of  the  people,  and  not  for  the  pri- 
vate gratification  of  the  subject."  Aud  Lord  Hale,  in  one  of  the 
passages  referred  to,  in  stating  the  reason  why  a  man  may  not  set  up 
a  ferry  without  a  charter  from  the  king,  says:  "  Because  it  doth  in 
consequence  tend  to  a  common  charge,  and  is  become  a  thing  of 
public  interest  and  use,  and  every  man  for  his  passage  pays  a  toll 
which  is  a  common  charge,  aud  every  ferry  ought  to  be  under  a 
public  regulation."  The  right  to  take  tolls  for  wharfage  in  a  public 
port  was  also  a  franchise,  and  tolls,  as  Lord  Hale  says,  could  not  be 
taken  without  lawful  title  by  charter  or  prescription.  De  Port.  Mar. 
77.  But  the  king,  if  he  maintained  a  public  wharf,  was  under  the 
same  obligation  as  a  subject  to  exact  only  reasonable  tolls,  nor  could 
the  king  authorize  unreasonable  tolls  to  be  taken  by  a  subject. 
The  language  of  Lord  Hale  is  explicit  upon  both  these  points:  "  If 
the  king  or  subject  have  a  public  wharf  into  which  all  persons  that 
come  to  that  port  must  come  to  unload  their  goods,  as  for  the  pur- 
pose, because  they  are  the  wharves  only  licensed  by  the  queen, 
according  to  the  statute  of  1  Eliz.  c.  11,  or  because  there  is  no  other 
wharf  in  that  port,  as  it  may  fall  out  when  a  port  is  newly  erected, 
in  that  case  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  passage,  etc.  Neither  can  they  be  enhanced  to 
an  immoderate  degree,  but  the  duties  must  be  reasonable  and  moder- 
ate, though  settled  by  the  king's  license  or  charter." 

The  contention  that  the  right  to  regulate  the  charges  of  ferrymen  or 
wharfingers  was  founded  on  the  fact  that  tolls  could  not  be  taken 
without  the  king's  license  does  not  seem  to  us  to  be  sound.  It 
rested  on  the  broader  basis  of  public  interest,  and  the  license  was  the 
method  by  which  persons  exercising  these  functions  were  subjected 
to  governmental  supervision.  The  king,  in  w^hom  the  franchise  of 
wharfage  was  vested  as  a  royal  prerogative,  was  himself,  as  has  been 
shown,  subject  to  the  same  rule  as  the  subject,  and  could  only  exact 
reasonable  wharfage,  nor  could  he  by  express  license  authorize  the 
taking  of  more.  The  language  of  Lord  Hale,  that  private  property 
may  be  affected  by  a  public  interest,  cannot  justly,  we  think,  be 
restricted  as  meaning  only  property  clothed  with  a  public  character 
by  special  grant  or  charter  of  the  sovereign.  The  control  which  by 
common  law  and  by  statute  is  exercised  over  common  carriers  is 
conclusive  upon  the  point  that  the  right  of  the  legislature  to  regu- 
late the  charges  for  services  in  connection  with  the  use  of  property 
does  not  in  every  case  depend  upon  the  question  of  legal  monopoly. 
From  the  earliest  period  of  the  common  law  it  has  been  held  that 
common  carriers  were  bound  to  carry  for  a  reasonable  compensation. 
They  were  not  at  liberty  to  charge  whatever  sum  they  pleased,  and, 
even  where  the  price  of  carriage  was  fixed  by  the  contract  or  conven- 
tion of  the  parties,  the  contract  was  not  enforceable  beyond  the  point 


82  PEOILE    V.    BUDD. 

of  reasonable  compensation.  From  time  to  time  statutes  have  been 
enacted  in  England  and  in  this  country  fixing  the  sum  which  should 
be  charged  by  carriers  for  the  transportation  of  passengers  and  prop- 
erty, and  the  validity  of  such  legis'ation  has  not  been  questioned. 
But  the  business  of  common  carriers  until  recent  times  was  conducted 
almost  exclusivel}'  by  individuals  for  private  emolument,  and  was  open 
to  every  one  who  chcjse  to  engage  in  it.  The  state  conferred  no  fran- 
chise, and  extended  to  common  carriers  no  benefit  or  protection, 
except  that  general  protection  which  the  law  affords  to  all  persons 
and  property  within  its  jurisdiction.  The  extraordinary  obligations 
imposed  upon  carriers,  and  the  subjection  of  the  business  to  public 
regulation,  were  based  on  the  character  of  the  business;  or,  in  the 
language  of  Sir  William  Jones,  upon  the  consideration  "  that  the 
calling  is  a  public  employment."  Jones,  Bailm.  App.  It  is  only 
a  public  employment  in  the  sense  of  the  language  of  Lord  IIalk, 
that  it  was  "  affected  with  a  public  interest,"  and  the  imposition  of 
the  character  of  a  public  business  upon  the  business  of  a  common 
carrier  was  made  because  public  policy  was  deemed  to  require  that  it 
should  be  under  public  regulation.  The  principle  of  the  common 
law,  that  common  carriers  must  serve  the  public  for  a  reasonable 
compensation,  became  a  part  of  the  law  of  this  state,  and  from  the 
adoption  of  the  constitution  has  been  part  of  our  municipal  law.  It 
is  competent  for  the  legislature  to  change  the  rule  of  reasonable  com- 
pensation, as  tlie  matter  was  left  by  the  common  law,  and  prescribe  a 
fixed  and  definite  compensation  tor  the  services  of  common  carriers. 
This  principle  was  declared  in  the  Muun  Case,  which  was  cited  with 
approval  on  this  point  in  Sawyer  w.  Davis,  136  Mass.  239.  It  accords 
with  the  language  of  Chief  Justice  Siiaw  in  Com.  v.  Alger,  7  Cush. 
53:  "  Wherever  there  is  a  general  right  on  the  part  of  the  public, 
and  a  general  duty  on  the  part  of  a  land-owner  or  any  other  person 
to  respect  such  right,  we  think  it  is  competent  for  the  legislature, 
by  a  specific  enactment,  to  prescribe  a  precise,  practical  rule  for 
declaring,  establishing,  and  securing  such  right,  and  enforcing 
respect  for  it."  The  practice  of  the  legislature  in  this  and  other 
states  to  prescribe  a  maximum  rate  for  the  transportation  of  persons 
or  property  on  railroads  is  justified  upon  this  principle.  Where  the 
right  of  the  legislature  to  regulate  the  fares  or  charges  on  railroads 
is  received  by  the  charter  of  incorporation,  or  the  charter  was  granted 
subject  to  the  general  right  of  alteration  or  repeal  by  the  legislature, 
the  power  of  the  legislature  in  such  cases  to  prescribe  the  rate  of 
compensation  is  a  part  of  the  contract,  and  the  exercise  of  the  power 
does  not  depend  upon  any  general  legislative  authority  to  regulate 
the  charges  of  common  carriers.  But  the  cases  are  uniform  that 
where  there  is  no  reservation  in  the  charter  the  legislature  may 
nevertheless  interfere,  and  prescribe  or  limit  the  charges  of  railroad 
corporations.  The  Granger  Cases,  94  U.  S.  113;  Dow  v.  Beidelman, 
125  U.  S.  680;  Earl,  J.,  in  People  v.  Railroad  Co.,  70  N.  Y.  569; 
RuGER,  C.  J.,  in  Railroad  Co.  v.  Railroad  Co.,  Ill  N.  Y.  132. 


PEOPLE   V.   BUDD.  83 

The  power  of  regulation  iu  these  cases  does  not  turn  upon  the  fact 
that  the  entities  affected  by  the  legislation  are  corporations  deriving 
their  existence  from  the  state,  but  upcni  the  fact  that  the  corporations 
are  common  carriers,  and  therefore  subject  to  legislative  control. 
The  state,  in  constituting  a  corporation,  may  prescribe  or  limit  its 
powers,  and  reserve  such  control  as  it  sees  fit,  and  the  body  accepting 
the  charter  takes  it  subject  to  such  limitations  and  reservations,  and 
is  bound  by  them.  The  considerations  upon  which  a  coiporatiou 
holds  its  franchise  are  the  duties  and  obligations  imposed  by  the  act 
of  incorporation.  But  when  a  corporation  is  created  it  has  the  same 
rights  and  the  same  duties,  within  the  scope  marked  out  for  its 
action,  that  a  natural  person  has.  Its  property  is  secured  to  it  by  the 
same  constitutional  guaranties,  and  in  the  management  of  its  prop- 
erty and  business  is  subject  to  regulation  by  the  legislature  to  the 
same  extent  only  as  natural  persons,  except  as  the  power  ma}^  be 
extended  by  its  charter.  The  mere  fact  of  a  corporate  character 
does  not  extend  the  power  of  legislative  regulation.  For  illustration, 
it  could  not  justly  be  contended  that  the  act  of  1888  would  be  a  valid 
exercise  of  legislative  power  as  to  corporations  organized  for  the  pur- 
pose of  elevating  grain,  although  invalid  as  to  private  persons  con- 
ducting the  same  business.  The  conceded  power  of  legislation  over 
common  carriers  is  adverse  to  the  claim  that  the  police  power  does 
not  in  any  case  include  the  power  to  fix  the  price  of  the  use  of  private 
property,  and  of  services  connected  with  such  use,  unless  there  is  a 
legal  monopoly,  or  special  governmental  privileges  or  protection  have 
been  bestowed.  It  is  said  that  the  control  which  the  legislature  is 
permitted  to  exercise  over  the  business  of  common  carriers  is  a  sur- 
vival of  that  class  of  legislation  which  in  former  times  extended  to 
the  details  of  personal  conduct,  and  assumed  to  regulate  the  private 
affairs  and  business  of  men  in  the  minutest  particulars.  This  is 
true.  But  it  has  survived  because  it  was  entitled  to  survive.  By 
reason  of  the  changed  conditions  of  society,  and  a  truer  appreciation 
of  the  proper  functions  of  government,  many  things  have  fallen  out  of  . 
the  range  of  the  police  power  as  formerly  recognized,  the  I'egulatiou'^" 
of  which  by  legislation  would  now  be  regarded  as  invading  personal 
liberty.  But  society  could  not  safely  surrender  the  power  to  regulate 
by  law  the  business  of  common  carriers.  Its  value  has  been  infinitely  * 
increased  by  the  conditions  of  modern  commerce,  under  which  the 
carrying  trade  of  the  country  is,  to  a  great  extent,  absorbed  by  cor- 
porations, and,  as  a  check  upon  the  greed  of  these  consolidated  in- 
terests, the  legislative  power  of  regulation  is  demanded  by  the  most 
imperative  public  interests.  The  same  principle  upon  which  the  con- 
trol of  common  carriers  rests  has  enabled  the  state  to  regulate  in  the 
public  interest  the  charges  of  telephone  and  telegraph  companies,  and 
to  make  the  telephone  and  telegraph,  those  important  agencies  of 
commerce,  subservient  to  the  wants  and  necessities  of  society. 
These  regulations  in  no  way  interfere  with  a  rational  liberty,  — ■ 
liberty  regulated  by  law. 


84  PEOPLE   V.   BUDD. 

There  are  elements  of  publicity  iu  the  business  of  elevating  grain 
which  peculiarly  affect  it  with  a  public  interest.  They  are  found  in 
the  nature  and  extent  of  the  business,  its  relation  to  the  commerce 
of  the  state  and  country,  and  the  practical  monopoly  enjoyed  by  those 
engaged  in  it.  The  extent  of  the  business  is  shown  by  the  facts  to 
which  we  have  referred.  A  large  proportion  of  the  surplus  cereals 
of  the  country  passes  through  the  elevators  at  Buffalo,  and  finds  its 
wa}'  through  the  Erie  Canal  and  Hudson  River  to  the  seaboard  at 
New  York,  from  whence  they  are  distributed  to  the  markets  of  the 
world.  The  business  of  elevating  grain  is  an  incident  to  the  busi- 
ness of  transportation.  The  elevators  are  indispensable  instrumen- 
talities in  the  business  of  the  common  carrier.  It  is  scarcely  too 
much  to  say  that,  in  a  broad  sense,  the  elevators  perform  the  work  of 
carriers.  They  are  located  upon  or  adjacent  to  the  waters  of  the  state, 
and  transfer  from  the  lake  vessels  to  the  canal-boats,  or  from  the 
canal-boats  to  the  ocean  vessels,  the  cargo  of  grain,  and  thereby 
perform  an  essential  service  in  transportation.  It  is  by  means  of 
the  elevators  that  transportation  of  grain  by  water  from  the  upper 
lakes  to  the  seaboard  is  rendered  possible.  It  needs  no  argument  to 
show  that  the  business  of  elevating  grain  has  a  vital  relation  to  com- 
merce in  one  of  its  most  important  aspects.  Every  excessive  charge 
made  in  the  course  of  the  transportation  of  grain  is  a  tax  on  com- 
merce, and  the  public  have  a  deep  interest  that  no  exorbitant  charges 
shall  be  exacted  at  any  point  upon  the  business  of  transportation. 
The  state  of  New  York,  in  the  construction  of  the  Erie  Canal,  ex- 
hibited its  profound  appreciation  of  the  public  interest  involved  in 
the  encouragement  of  commerce.  The  legislature  of  the  state,  iu 
entering  upon  the  work  of  constructing  a  water-way  between  Lake 
Erie  and  the  Atlantic  Ocean,  sets  forth  in  the  preamble  of  the  orig- 
inating act  of  1817  its  reasons  for  that  great  undertaking.  "  It 
will,"  the  preamble  says,  "promote  agriculture,  manufactures,  and 
commerce,  mitigate  the  calamities  of  war,  and  enhance  the  bless- 
ings of  peace,  consolidate  the  Union,  and  advance  the  prosperity 
**aud  elevate  the  chax-acter  of  the  United  States."  In  the  construction 
%rn\  enlargement  of  the  canal  the  state  has  expended  vast  sums  of 
'hloney,  raised  by  taxation;  and  finally,  to  still  further  promote  the 
interests  of  commerce,  it  has  made  tlie  canal  a  free  highway,  and 
maintains  it  by  a  direct  tax  upon  the  people  of  the  state.  The  wise 
forecast  and  statesmanship  of  the  projectors  of  this  work  have  been 
amply  demonstrated  by  experience.  It  lias  largely  contributed  to  the 
power  and  infiuence  of  the  state,  promoted  the  prosperity  of  tne 
people,  and  to  it,  more  perhaps  than  to  any  other  single  cause,  is  it 
owing  that  the  city  of  New  Yoik  has  become  the  commercial  centre 
of  the  Union. 

"Whatever  impairs  the  usefulness  of  the  canal  as  a  highway  of  com- 
merce involves  tlie  public  interest.  The  people  of  New  York  are 
greatly  interested  to  prevent  any  undue  exactions  in  the  business  of 
transportation  which  shall  enhance  the  cost  of  the  necessaries  of  life, 


PEOPLE    V.   BUDD.  85 

or  force  the  trade  in  grain  into  channels  outside  of  our  state.  In 
Hooker  v.  Vandewater,  4  Denio,  oA.\)^  the  court  was  called  upon 
to  consider  the  validity  of  an  agreement  between  certain  transporta- 
tion lines  on  the  canal  to  keep  up  the  price  of  freights.  The  court 
held  the  agreement  to  be  illegal,  and  Jewett,  J.,  in  pronouncing  the 
judgment  of  the  court,  said :  "  That  the  raising  of  the  price  of  freights 
for  the  transportation  of  merchandise  or  passengers  upon  our  canals 
is  a  matter  of  public  concern,  and  in  which  the  public  have  a  deep 
interest,  does  not  admit  of  doubt.  It  is  a  familiar  maxim  that  com- 
petition is  the  life  of  trade.  It  follows  that  whatever  destroys,  or 
even  relaxes,  competition  in  trade  is  injurious,  if  not  fatal,  to  it." 
The  same  question  came  up  a  second  time  in  Stanton  v.  Allen,  5 
Denio,  434,  and  was  decided  the  same  way.  In  the  course  of  its 
opinion  the  court  said:  "As  these  canals  are  the  property  of  the 
state,  constructed  at  great  expense,  as  facilities  to  trade  and  com- 
merce, and  to  foster  and  encourage  agriculture,  and  are,  at  the  same 
time,  a  munificent  source  of  revenue,  whatever  concerns  their  employ- 
ment and  usefulness  deeply  involves  the  interests  of  the  whole  state." 
The  fostering  and  protection  of  commerce  was,  even  in  ancient 
times,  a  favorite  object  of  English  law  (Chit.  Prerog.  162);  and 
this  author  states  that  the  "  superintendence  and  care  of  commerce, 
on  the  success  of  which  so  materially  depends  the  wealth  and  pros- 
perity of  the  nation,  are  in  various  cases  allotted  to  the  king  by  the 
constitution,"  and  many  governmental  powers  vested  in  the  sovereign 
in  England  have  since  our  Revolution  devolved  on  the  legislatures 
of  the  states.  The  statutes  of  England  in  earlier  time  were  full  of 
oppressive  commercial  regulations,  now,  happil}',  to  a  great  extent 
abrogated;  but  that  the  interests  of  commerce  are  matters  of  public 
concern  all  states  and  governments  have  fully  recognized. 

The  third  element  of  publicity  which  tends  to  distinguish  the 
business  of  elevating  grain  from  general  commercial  pursuits  is  the 
practical  monopoly  which  is  or  may  be  connected  with  its  prosecu- 
tion. In  the  city  of  Butfalo  the  elevators  are  located  at  the  junction 
of  the  canal  with  Lake  Erie.  The  owners  of  grain  are  compelled  to 
use  them  in  transferring  cargoes.  The  area  upon  which  it  is  practi- 
cable to  erect  them  is  limited.  The  structures  are  expensive,  and  the 
circumstances  afford  great  facility  for  combination  among  the  owners 
of  elevators  to  fix  and  maintain  an  exorbitant  tariff  of  charges,  and 
to  bring  into  the  combination  any  new  elevator  which  may  be  erected, 
and  employ  it  or  leave  it  unemployed,  but  in  either  cnse  permit  it  to 
share  in  the  aggregate  earnings.  It  is  evident  that  if  such  a  combi 
nation  in  fact  exists  the  principle  of  free  competition  in  trade  is 
excluded.  The  precise  object  of  the  combination  would  be  to  prevent 
competition.  The  result  of  such  a  combination  would  necessarily  be 
to  subject  the  lake  vessels  and  canal-boats  to  any  exaction  which  the 
elevator  owners  might  see  fit  to  impose  for  the  service  of  the  elevator, 
and  the  elevator  owners  would  be  able  to  lev}^  a  tribute  on  the  com- 
munity, the  extent  of  which  would  be  limited  only  by  their  discretion. 


SQ  PEOPLE   V.   BUDD. 

It  is  upon  these  various  circumstances  tiiat  the  court  is  called  upon 
to  detenu iue  whether  tiie  legislature  may  interfere  and  regulate  the 
charges  of  elevators.  It  is  purely  a  question  of  legislative  power. 
If  the  power  to  legislate  exists  the  court  has  nothing  to  do  with  the 
policy  or  wisdom  of  the  interference  in  the  particular  case,  or  with 
the  question  of  the  adequacy  or  inadequacy  of  the  compensation 
authorized.  "This  court,"  said  Chase,  C.  J.,  in  the  License  Tax 
Cases,  5  Wall.  4G9,  "  can  know  nothing  of  public  policy,  except 
from  the  constitution  and  the  laws,  and  the  course  of  administration 
and  decision.  It  has  no  legislative  powers.  It  cannot  amend  or 
modify  any  legislative  acts.  It  cannot  examine  questions  as  expe- 
dient or  inexpedient,  as  politic  or  impolitic.  Considerations  of  that 
sort  must,  in  general,  be  addressed  to  the  legislature.  Questions 
of  policy  determined  there  are  concluded  here."  Can  it  be  said,  in 
view  of  the  exceptional  circumstances,  that  the  business  of  elevating 
grain  is  not  "  affected  with  a  public  interest,"  within  the  language  of 
Lord  Hale,  or  that  the  case  does  not  fall  within  the  principle  which 
permits  the  legislature  to  regulate  the  business  of  common  carriers, 
ferrymen,  innkeepers,  hackmen,  and  the  interest  on  the  use  of  money? 
It  seems  to  us  that  speculative,  if  not  fanciful,  reasons  have  been 
assigned  to  account  for  the  right  of  legislative  regulation  in  these 
and  other  cases.  It  is  said  that  the  right  to  regulate  the  charges  of 
hackmen  springs  from  the  fact  that  they  are  assigned  stands  in  the 
public  streets;  that  the  legislature  may  regulate  the  toll  on  ferries 
because  the  right  to  establish  a  ferry  is  a  franchise,  and  therefore 
the  business  is  subject  to  regulation;  that  the  right  to  regulate  wharf- 
age rested  upon  the  permission  of  the  sovereign  to  extend  wharves 
into  the  beds  of  navigable  streams,  the  title  to  which  was  in  the 
sovereign;  that  the  right  to  regulate  the  interest  on  the  use  of  money 
sprung  from  the  fact  that  taking  interest  was  originally  illegal  at 
common  law,  and  that  where  the  right  was  granted  by  statute  it  was 
taken  subject  to  regulation  by  law.  The  plain  reason,  we  think,  why 
the  charges  of  hackmen  and  ferrymen  were  made  subject  to  public 
regulation  is  that  they  were  common  carriers.  The  reason  assigned 
for  the  right  to  regulate  wharfage  in  England  overlooks  the  fact  that 
the  title  to  the  beds  of  navigable  streams  was  frequently  vested  in  a 
subject,  and  was  his  private  property,  subject  to  certain  public 
rights,  as  the  right  of  navigation,  and  no  distinction  as  to  the  power 
of  public  regulation  is  suggested  in  the  ancient  books  between 
wharves  built  upon  the  beds  of  navigable  waters,  the  title  to  which 
was  in  the  sovereign,  and  wharves  erected  upon  navigable  streams, 
the  beds  of  which  belonged  to  a  subject.  The  obligation  of  the 
owner  of  the  only  wharf  in  a  newly  erected  portJ;o  charge  only  reas- 
onable wharfage  is  placed  by  Lord  Hale  on  the  ground  of  a  virtual, 
as  distinguished  from  a  legal,  monopoly.  The  reason  assigned  for 
the  right  to  regulate  interest  takes  no  account  of  the  fact  that  the 
prohibition  by  tlie  ancient  common  law  to  take  interest  at  all  was  a 
regulation,  and  this  manifestly  did  not  rest  upon  any  benefit  con- 


PEOPLE   V.    BUDD.  87 

ferred  on  the  lenders  of  money.  It  was  a  regulation  springing  from 
a  supposed  public  interest,  and  was  peculiarly  oppressive  on  a  certain 
class.  A  law  prohibiting  the  taking  of  interest  on  the  use  of  money 
would  now  be  deemed  a  violation  of  a  right  of  property.  But  the 
material  point  is  that  the  prohibition,  as  well  as  the  regulation,  of 
interest,  was  based  upon  public  policy,  and  the  present  conceded  right 
of  regulation  does  not  have  its  foundation  in  any  grant  or  privilege 
conferred  by  the  sovereign.  The  attempts  made  to  place  the  right 
of  public  regulation  in  these  cases  upon  the  ground  of  special  priv- 
ilege conferred  by  the  public  on  those  affected  cannot,  we  think,  be 
supported.  The  underlying  principle  is  that  business  of  certain 
kinds  holds  such  a  peculiar  relation  to  the  public  interests  that  there 
is  superinduced  upon  it  the  right  of  public  regulation.  We  rest  the 
power  of  the  legislature  to  control  and  regulate  elevator  charges 
on  the  nature  and  extent  of  the  business,  the  existence  of  a  virtual 
monopoly,  the  benefit  derived  from  the  canal,  creating  the  business 
and  making  it  possible,  the  interest  to  trade  and  commerce,  the  rela- 
tion of  the  business  to  the  prosperity  and  welfare  of  the  state,  and 
the  practice  of  legislation  in  analogous  cases.  These  circumstances 
collectively  create  an  exceptional  case,  and  justify  legislative 
regulation. 

The  case  of  Munn  v.  Illinois  has  been  frequently  cited  with  ap- 
proval by  courts  in  other  states.  Nash  v.  Page,  80  Ky.  539;  Hockett 
V.  State,  105  Ind.  250;  Telephone  Co.  v.  Telegraph  Co.,  66  Md.  399; 
Davis  V.  State,  68  Ala.  58.  In  Nash  v.  Page  it  was  held,  upon  the 
doctrine  of  the  Munn  Case,  that  warehousemen,  for  the  public  sale 
and  purchase  of  tobacco  in  Louisville,  exercised  a  public  business, 
and  assumed  obligations  to  serve  the  entire  public,  and  could  not 
exclude  persons  from  buying  or  selling  tobacco  in  their  warehouses 
who  were  not  members  of  the  board  of  trade.  In  Hockett  v.  State 
it  was  held  that  the  relations  which  telephone  companies  have  assumed 
towards  the  public  imposed  public  obligations,  and  that  all  the  in- 
struments and  appliances  used  by  telephone  companies  in  the  prose- 
cution of  the  business  were,  in  legal  contemplation,  devoted  to  public 
use.  In  Telegraph  Co.  v.  Telephone  Co.  legislation  prohibiting 
discrimination  in  the  business  of  telegraphing  was  upheld  on  the 
doctrine  of  the  Munn  Case.  The  criticism  to  which  the  Munn  Case 
has  been  subjected  has  proceeded  mainly  on  a  limited  and  strict 
construction  and  definition  of  the  police  power.  The  ordinary  sub- 
jects upon  which  it  operates  are  well  understood.  It  is  most  fre- 
quently exerted  in  the  maintenance  of  public  order,  the  protection  of 
the  public  health  and  public  morals,  and  in  regulating  mutual  rights 
of  property,  and  the  use  of  property,  so  as  to  prevent  uses  by  one  of 
his  property  to  the  injury  of  the  property  of  another.  These  are 
instances  of  its  exercise,  but  they  do  not  bound  the  sphere  of  its 
operation.  In  the  King  Case,  110  N.  Y.  418,  it  was  given  a  much 
broader  scope,  and  was  held  to  be  efficient  to  prevent  discrimination 
on  the  ground  of  race  and  color  in  places  opened  for  public  enter* 


88  PEOPLE    V.    BUDD. 

taiument.  In  that  case  the  owner  of  the  skating-rink  derived  no 
special  privilege  or  protection  from  the  state.  The  public  held  no 
right,  in  any  legal  sense,  to  resort  to  his  premises.  His  permission, 
except  for  the  public  interest  involved,  was  revocable  as  to  the  -whole 
community  or  any  individual  citizen.  But  it  was  held  that  so  long 
as  he  devoted  his  place  to  purposes  of  public  entertainment  he  sub- 
jected it  to  public  regulations.  There  is  little  reason,  under  our 
system  of  government,  for  placing  a  close  and  narrow  interpretation 
on  the  police  power,  or  in  restricting  its  scope  so  as  to  hamper  the 
legislative  power  in  dealing  with  the  varying  necessities  of  society, 
and  the  new  circumstances  as  they  arise,  calling  for  legislative  inter- 
vention in  the  public  interest.  Life,  liberty,  and  property  have  a 
substantial  protection  against  serious  invasion  by  the  legislature  in 
the  traditions  of  the  English-speaking  race,  and  a  pervading  public 
sentiment  which  is  quick  to  resent  any  substantial  encroachment  upon 
personal  freedom  or  the  rights  of  property.  In  no  country  is  the 
force  of  public  opinion  so  direct  and  imperative  as  in  this.  The 
legislature  may  transgress  the  principles  of  the  Constitution.  It 
has  done  so  in  the  past,  and  it  may  be  expected  that  it  will  some- 
times do  so  in  the  future.  But  unconstitutional  enactments  have 
generally  been  the  result  of  haste  or  inadvertence,  or  of  transient  and 
unusual  conditions  in  times  of  public  excitement  which  have  been 
felt  and  responded  to  in  the  halls  of  legislation.  The  framers  of  the 
government  wisely  interposed  the  judicial  power,  and  invested  it 
with  the  prerogative  of  bringing  every  legislative  act  to  the  test  of 
the  Constitution.  But  no  serious  invasion  of  constitutional  guaran- 
ties by  the  legislature  can  for  a  long  time  withstand  the  searching 
intluence  of  public  opinion,  which  sooner  or  later  is  sure  to  come  to 
the  side  of  law  and  order  and  justice,  however  much  for  a  time  it  may 
have  been  swayed  by  passion  or  prejudice,  or  whatever  aberration 
may  have  marked  its  course.  So,  also,  in  that  wide  range  of  legis- 
lative powers  over  persons  and  property  which  lie  outside  of  the  pro- 
hibitions of  the  Constitution,  and  which  inhere  of  necessity  in  the 
very  idea  of  government,  by  which  persons  and  property  may  be 
affected  without  transgressing  constitutional  guaranties,  there  is  a 
restraining  and  corrective  power  iu  public  opinion  which  is  a  safe- 
guard of  tremendous  force  against  unwise  and  impolitic  legislation, 
hampering  individual  enterprise,  and  checking  the  healthful  stimulus 
of  self-interest,  which  are  the  life-blood  of  commercial  progress. 
The  police  power  may  be  used  for  illegitimate  ends,  although  no 
court  can  say  that  the  fundamental  law  has  been  violated.  There  is 
a  remedy  at  the  polls,  and  it  is  an  efficient  remedy  if,  at  the  bottom, 
the  legislation  under  it  is  oppressive  and  unjust.  The  remedy  by 
taking  away  the  power  of  the  legislature  to  act  at  will  would,  indeed, 
be  radical  and  complete.  But  the  moment  the  police  power  is  de- 
stroyed or  curbed  by  fixed  and  rigid  rules  a  danger  is  introduced  into 
our  system  whicii  wou'd,  we  think,  be  far  greater  than  results  from 
an  occasional  departure  by  the  legislature  from  <-orrect  principles  of 


BRASS    V.   NORTH   DAKOTA.  89 

government.  We  here  conclude  our  examination  of  the  important 
question  presented  b}'  this  case.  The  division  of  opinion  in  this  and 
other  courts  is  evidence  of  the  difficult}'  which  surrounds  it.  But  it  is 
ever  to  be  remembered  that  a  statute  must  stand  so  long  as  any  reason- 
able doubt  can  be  indulged  in  favor  of  its  constitutionality.  We  are  of 
opinion  that  the  statute  of  188S  is  constitutional,  as  a  wliole,  and  that 
although  it  may  comprehend  cases  which,  standing  alone,  might  not 
justify  legislative  interference,  j'et  they  must  be  governed  by  the 
general  rule  enacted  by  the  legislature.  The  judgment  should  be 
affirmed.-^ 


BRASS   V.   NORTH   DAKOTA  ex  rel.   STOESER. 

Supreme  Court  of  the  United  States,   1894. 

[153  U.  S.  391.2] 

Norman  Brass,  the  plaintiff  in  error,  owns  and  operates  a  grain  ele- 
vator in  the  village  of  Grand  Harbor,  in  the  State  of  North  Dakota. 
The  defendant  in  error,  Louis  W.  vStoeser,  owns  a  farm  adjoining  the 
village,  on  which  in  the  year  1891  he  raised  about  four  thousand  bushels 
of  wheat.  On  September  30,  1891,  Stoeser  applied  to  store  a  part  of 
his  wheat-crop  for  the  compensation  fixed  by  section  eleven  of  chapter 
126  of  the  Laws  of  North  Dakota  for  the  ^ear  1891,  which  Brass  re- 
fused to  do  unless  paid  therefor  at  a  rate  in  excess  of  that  fixed  by  the 
statute.  On  this  refusal  Stoeser  filed  in  the  District  Court  of  Ramsey 
Count}-,  North  Dakota,  a  petition  for  an  alternative  writ  of  mandamus. 
The  District  Court  granted  an  alternative  writ  of  m,andanius  (as 
follows).  .   .   . 

Mr.  Justice  Shiras  .  .  .  The  legislature  of  the  State  of  North  Da- 
kota, by  an  act  approved  March  7,  1891,  c.  126,  Laws  of  1891,  p.  321, 
and  entitled  "An  Act  to  regulate  grain  warehouses  and  the  weighing  and 
handling  of  grain,  and  defining  the  duties  of  the  railroad  commissioners 
in  relation  thereto,"  enacted,  in  the  fourth  section  thereof,  that  "all 
buildings,  elevators,  or  warehouses  in  this  State,  erected  and  operated, 
or  which  may  hereafter  be  erected  and  operated  by  any  person  or  per- 
sons, association,  copartnership,  corporation,  or  trust,  for  the  purpose 
of  buying,  selling,  storing,  shipping,  or  handling  grain  for  profit,  are 
hereby  declared  public  warehouses,  and  the  person  or  persons,  associa- 
tion, copartnership,  or  trust  owning  or  operating  said  building  or  build- 
ings, elevator  or  elevators,  warehouse  or  warehouses,  which  are  now  or 
may  hereafter  be  located  or  doing  business  within  this  State,  as  above 

1  Compare :  Railroad  Co  v.  Stockyard  Co.,  4.5  N.  J.  T.q.  50 ;  Belcher  t'.  Grain  Ele- 
vator, 101  Mo.  192;  McCullough  v.  Browu,  41  S.  C.  247;  Steamship  Co.  v.  Elevator 
Co.,  75  Minn.  312.  — Ed. 

2  This  ca.se  is  abridged.  —  Ed. 


90  BKASS   V.   NORTH   DAKOTA. 

described,  whether  said  owners  or  operators  reside  within  this  State  or 
not,  are  public  warehousemen  within  the  meaning  of  this  act,  and  none 
of  the  provisions  of  this  act  shall  be  construed  so  as  to  permit  discrim- 
ination with  reference  to  the  buying,  receiving,  and  handling  of  grain 
of  standard  grades,  or  in  regard  to  parties  offering  such  grain  for  sale, 
storage,  or  handling  at  such  public  wareiiouses,  while  the  same  are  in 
operation;"  and  in  the  fifth  section,  '-tliat  the  proprietor,  lessee,  or 
manager  of  any  public  warehouse  or  elevator  in  this  State  shall  file  with 
the  railroad  commissioners  of  the  State  a  bond  to  the  State  of  North 
Dakota,  with  good  and  sufficient  sureties,  to  be  approved  by  said  com- 
missioners of  railroads,  in  the  penal  sum  of  not  less  than  $5,000  nor 
more  than  $75,000,  in  the  discretion  of  said  commissioners,  conditioned 
for  the  faithful  performance  of  duty  as  public  warehousemen,  and  a 
compliance  with  all  the  laws  of  the  State  in  relation  thereto  ;  "  and  in 
the  eleventh  section  thereof,  "the  charges  for  storing  and  handling  of 
grain  shall  not  be  greater  than  the  following  schedule  :  For  receiving, 
elevating,  insuring,  delivering,  and  twenty  days'  storage,  two  cents  per 
bushel.  Storage  rates,  after  the  first  twenty  da3's,  one-half  cent  for 
each  fifteen  days  or  fraction  thereof,  and  shall  not  exceed  five  cents  for 
six  months.  The  grain  shall  be  kept  insured  at  the  expense  of  the 
warehousemen  for  the  benefit  of  the  owner ;  "  and  bj'  the  twelfth  sec- 
tion it  is  provided  that  "  any  person,  firm,  or  association,  or  any  rejn'e- 
sentative  thereof,  who  shall  fail  to  do  and  keep  the  requirements  as 
hei-ein  provided,  shall  be  deemed  guilt}'  of  a  misdemeanor,  and  shall,  on 
conviction  thereof,  be  subject  to  a  fine  of  not  less  than  two  hundred 
dcjllai's  nor  more  than  one  thousand  dollars,  and  be  liable  in  addition 
thereto  to  imprisonment  for  not  more  tlian  one  year  in  the  state  peni- 
tentiary, at  the  discretion  of  the  court." 

In  October,  1891,  in  the  District  Court  of  the  Second  Judicial  Dis- 
trict of  the  State  of  North  Dakota,  in  proceedings  the  nature  of  which 
sufHeientiy  appears  in  the  previous  statement  of  facts,  the  validity  of 
this  statute  was  sustained,  and  the  judgment  of  that  court  was,  on 
error,  duly  affirmed  by  the  Supreme  Court  of  the  State.  Brass  v.  North 
Dakota,  52  N.  W.  Rep.  408. 

In  the  eases  thus  brought  to  this  court  from  the  States  of  Illinois  and 
New  York,  we  were  asked  to  declare  void  statutes  regulating  the  affairs 
of  grain  warehouses  and  elevators  within  those  States,  and  held  valid 
by  their  highest  courts,  because  it  was  claimed  that  such  legislation  was 
repugnant  to  that  clause  of  the  eighth  section  of  article  1  of  the  Con- 
stitution of  the  United  States,  which  confers  upon  Congress  power  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States, 
and  to  the  Fourteenth  Amendment,  whicli  ordains  that  no  State  shall 
deprive  an^'  person  of  life,  liberty,  or  pro[)erty  without  due  process  of 
law,  nor  deny  to  any  person  within  its  jurisdiction  tiie  equal  protection 
of  the  laws. 

In  the  case  now  before  us  the  same  contentions  are  made,  but  we  are 
not  asked  to  review  our  decisions  made  in  the  previous  cases.    Indeed, 


BRASS    V.   NOETH   DAKOTA.  91. 

their  soundness  is  tacitly  admitted  in  the  briefs  and  argument  of  the 
counsel  of  the  plaintiff  in  error.  But  it  is  said  that  those  cases  arose 
out  of  facts  so  peculiar  and  exceptional,  and  so  different  from  those  of 
the  present  ease,  as  to  render  the  reasoning  there  used,  and  the  conclu- 
sions reached,  now  inapplicable. 

The  concession,  then,  is  that,  upon  the  facts  found  to  exist  b}-  the 
legislatures  of  Illinois  and  New  York,  their  enactments  were  by  the 
courts  properly  declared  valid,  and  the  contention  is  that  the  facts  upon 
which  the  legislature  of  North  Dakota  proceeded,  and  of  which  we  can 
take  notice  in  the  present  case,  are  so  different  as  to  call  for  the 
application  of  other  principles,  and  to  render  an  opposite  conclusion 
necessar}'. 

Tlie  differences  in  the  facts  of  the  respective  cases,  to  which  we  are 
pointed,  are  mainly  as  follows  :  In  the  first  place,  what  may  be  called  a 
geographical  difference  is  suggested,  in  that  the  operation  of  the  Illi- 
nois and  New  York  statutes  is  said  to  be  restricted  to  the  city  of  Clii- 
cago  in  the  one  case,  and  to  the  cities  of  Buffalo,  New  York,  and 
Brookl3'n  in  the  other,  while  the  North  Dakota  statute  is  applicabli;  to 
the  territory  of  the  entire  State. 

It  is,  indeed,  true  that  while  the  terms  of  the  Illinois  and  New  York 
"statutes  embrace  in  botli  cases  the  entire  State,  yet  their  behests  are 
restricted  to  cities  having  not  less  than  a  prescribed  number  of  inhabi- 
tants, and  that  there  is  no  such  restriction  in  the  Nortli  Dakota  law. 

Upon  this  it  is  argued  that  the  statutes  of  Illinois  and  New  York 
are  intended  to  operate  in  great  trade  centres,  where,  on  account  of  the 
business  being  localized  in  the  hands  of  a  few  persons  in  close  prox- 
imity to  each  other,  great  opportunities  for  combinations  to  raise  and 
control  elevating  and  storage  charges  are  afforded,  while  the  wide  ex- 
tent of  the  State  of  North  Dakota  and  the  small  population  of  its 
country  towns  and  villages  are  said  to  present  no  such  opportunities. 

The  considerations  mentioned  are  obviously  addressed  to  the  legisla- 
tive discretion.  It  can  scarcely  be  meant  to  contend  that  the  statutes  of 
Illinois  and  New  York,  valid  in  their  present  form,  would  become  illegal 
if  the  law  makers  thought  fit  to  repeal  the  clauses  limiting  their  operation 
tf)  cities  of  a  certain  size,  or  that  the  statute  of  North  Dakota  would  at 
once  be  validated  if  one  or  more  of  her  towns  were  to  reach  a  popu- 
lation of  one  hundred  thousand,  and  her  legislature  were  to  restrict  the 
operation  of  the  statute  to  such  cities. 

Again,  it  is  said  that  the  modes  of  carrying  on  the  business  of  ele- 
vating and  storing  grain  in  North  Dakota  are  not  similar  to  those  pur- 
sued in  the  Eastern  cities;  that  the  great  elevators  used  in  trans-shipping 
grain  from  the  Lakes  to  the  railroads  are  essential ;  and  that  those  who 
own  them,  if  uncontrolled  by  law,  could  extort  such  charges  as  they 
pleased  ;  and  great  stress  is  laid  upon  expressions  used  in  our  previous 
opinions,  in  which  this  business,  as  carried  on  at  Chicago  and  Buffalo, 
is  spoken  of  as  a  practical  monopoly,  to  which  shippers  and  owners  of 
grain  are  compelled  to  resort.      The  surroundings  in  an  agricultural 


92  BRASS    V.    NORTH    DAKOTA. 

State,  where  land  is  cheap  in  price  and  limitless  in  qiiantit\-,  are  thought 
to  be  widely  different,  and  to  demand  different  reguhitions. 

These  arguments  are  disposed  of,  as  we  think,  by  the  simple  observa- 
tion, alread}-  made,  that  tlie  facts  rehearsed  are  matters  for  those  who 
make,  not  for  those  who  interjjret,  the  laws.  AVhen  it  is  once  admitted, 
as  it  is  admitted  here,  that  it  is  competent  for  the  legislative  power  to 
control  the  business  of  elevating  and  storing  grain,  whether  carried  on 
by  individuals  or  associations,  in  cities  of  one  size  and  in  some  circum- 
stances, it  follows  that  such  power  ma}-  be  legally  exerted  over  the  same 
business  when  carried  on  in  smaller  cities  and  in  other  circumstances. 
It  may  be  conceded  that  that  would  not  be  wise  legislation  which 
provided  the  same  regulations  in  every  case,  and  overlooked  differ- 
ences in  the  facts  that  called  for  regulations.  But,  as  we  have  no 
right  to  revise  the  wisdom  or  expediency  of  the  law  in  question,  so  we 
would  not  be  justified  in  imputing  an  improper  exercise  of  discretion  to 
the  legislature  of  North  Dakota.  It  may  be  true  that,  in  the  cases 
cited,  the  judges  who  expressed  the  conclusions  of  the  court  entered,  at 
some  length,  into  a  defence  of  the  propriety  of  the  laws  wliich  they 
were  considering,  and  that  some  of  tlie  reasons  given  for  sustaining 
them  went  rather  to  their  expediency  than  to  their  validity.  Such 
efforts,  on  the  part  of  judges,  to  justif}'  to  citizens  the  waj-s  of  legisla- 
tures are  not  without  value,  though  they  are  liable  to  be  met  by  the 
assertion  of  opposite  views  as  to  tlie  practical  wisdom  of  the  law,  and 
thus  tlie  real  question  at  issue,  namely,  the  power  of  the  legislature  to 
act  at  all,  is  obscured.  Still,  in  the  present  instance,  the  obvious  aim 
of  the  reasoning  that  prevailed  was  to  show  that  the  subject-matter  of 
these  enactments  fell  within  the  legitimate  sphere  of  legislative  power, 
and  that,  so  far  as  the  laws  and  Constitution  of  the  United  States  were 
concerned,  the  legislation  in  question  deprived  no  person  of  his  prop- 
erty without  due  process  of  law,  and  did  not  interfere  with  Federal 
jurisdiction  over  interstate  commerce. 

Another  argument  advanced  is  based  on  the  admitted  allegation  that 
the  principal  business  of  the  plaintiff  in  error,  in  connection  with  his 
warehouse,  is  in  storing  his  own  grain,  and  tliat  the  storage  of  the  grain 
of  other  persons  is  and  alwaj^s  has  been  a  mere  incident,  and  it  is  said 
that  the  effect  of  this  law  will  be  to  compel  him  to  renounce  his  princi- 
pal business  and  become  a  mere  warehouseman  for  others.  We  do  not 
understand  this  law  to  require  tlie  owner  of  a  warehouse,  built  and  used 
b}'  him  only  to  store  his  own  grain,  to  receive  and  store  the  grain  of 
others.  Such  a  duty  onlj'  arises  when  he  chooses  to  enter  upon  the 
business  of  elevating  and  storing  the  grain  of  other  persons  for  profit. 
Then  he  becomes  subject  to  the  statutory  regulations,  and  he  cannot 
escape  them  by  asserting  that  he  also  elevates  and  stores  his  own  grain 
in  the  same  warehouse.  As  well  raiglit  a  person  accused  of  selling 
liquor  without  a  license  urge  that  the  larger  part  of  his  liquors  were 
designed  for  his  own  consumption,  and  that  he  only  sold  the  surplus  as 
a  mere  incident 


LOWRY    V.   TILE,    MANTEL   AND    GKATE    ASSOCIATION.  93 

Another  objection  to  the  law  is  found  in  its  provision  that  the  ware- 
houseman shall  insure  the  grain  of  others  at  his  own  expense.  This 
may  be  burdensome,  but  it  affects  alike  all  engaged  in  the  business,  and, 
if  it  be  regarded  as  contrary  to  sound  public  policy,  those  affected  must 
instruct  their  representatives  in  general  assembly  met  to  provide  a 
remedy'. 

The  plaintiff  in  error,  in  his  answer  to  the  writ  of  mandamus,  based 
his  defence  wholly  upon  grounds  arising  under  the  Constitution  of  the 
State  and  of  the  United  States.  We  are  limited  by  this  record  to  the 
questions  whether  the  legishiture  of  North  Dakota,  in  regulating  by  a 
general  law  the  business  and  charges  of  public  warehousemen  engaged 
in  elevating  and  storing  grain  for  profit,  denies  to  the  plaintiff  in  error 
the  equal  protection  of  the  laws  or  deprives  him  of  his  property  with- 
out due  process  of  law,  and  whether  such  statutory  regulations  amount 
to  a  regulation  of  commerce  between  the  States.  The  allegations  and 
arguments  of  the  plaintiff  in  error  have  failed  to  satisfy  us  that  any 
solid  distinction  can  be  found  between  the  cases  in  which  those  ques- 
tions have  been  heretofore  determined  by  this  court  and  the  present 
one.     The  judgment  of  the  court  below  is  accordingly         Affirmed. 

Mr.  Justice  Brewer,  with  whom  concurred  Mr.  Justice  Field,  Mr. 
Justice  Jackson,  and  Mr.  Justice  White,  dissenting.^ 


LOWRY  V.  TILE,  MANTEL  AND    GRATE  ASSOCIATION. 
Circuit  Court  of  the  United   States,  1899. 

[98Fe£?.  817.2] 

Morrow,  Circuit  Judge.  This  is  an  action  at  law  brought  to  recover 
damages  alleged  to  have  been  sustained  by  plaintiffs  by  reason  of  in- 
jury to  their  business  caused  by  the  forming  of  an  association  by  de- 
fendants claimed  to  be  within  the  prohibitory  provisions  of  the  act  of 
Congress  of  July  2,  1890,  commonly  known  as  the  "  Sherman  Anti- 
trust Act."  The  amended  complaint  alleges  :  That  in  the  years  1896 
and  1897  there  were  in  San  Francisco  and  the  other  said  cities  numer- 
ous persons  engaged  in  the  wholesale  and  retail  business  of  selling 
tiles,  and  in  the  placing  and  laying  of  them.  That  defendants,  with 
intent  to  form  a  contract,  trust,  and  conspiracy  in  restraint  of  trade 
and  commerce  between  the  State  of  California  and  tlie  States  of 
Indiana,  Kentucky,  New  Jersey,  Pennsylvania,  and  Ohio,  for  the  pur- 
pose of  controlling  the  output  aud  regulating  the  price  of  these  com- 

1  Compare:  Getting  v.  Goddard,  22  Sc.  Rep.  30;  Stock  Co.  v.  Exchange,  143  111. 
239  ;  Ladd  v.  Cotton  Press,  53  Tex.  172.  —  Ed. 
'^  This  case  is  abridged.  — Ed. 


94  LOWRY    V.    TILE,    MANTEL    AND    GRATE    ASSOCL\TION. 

raodities  and  monopolizing  tlie  said  trade,  combined  and  conspired  to 
monopolize  the  grate,  tile,  and  mantel  importations  and  trade  and  com- 
merce from  other  States  to  and  with  the  State  of  California,  to  the  ex- 
tent of  the  tiles,  grates,  and  mantels  that  could  be  used  in  the  State 
of  California  in  the  erection  and  construction  of  dwellings  and  build- 
ings, and  so  conspired  to  raise  the  price  of  these  commodities  in  the 
California  market,  and  for  this  purpose  on  or  about  the  day  of 

Januar}',  1898,  formed  an  organization  and  adopted  a  constitution  and 
by-laws,  which  constitution  and  by-laws  are  now  in  effect.  That  the 
said  constitution  and  by-laws  provided  that  no  sales  and  deliveries,  or 
contracts  for  the  sale  or  delivery,  or  the  placing  of  tiles,  grates,  or 
mantels,  will  be  made  by  the  manufacturers  tliereof  to  anv  person  deal- 
ing in  these  commodities,  unless  such  person  belong  to  the  said  unin- 
corporated association,  and  shall  pay  or  cause  to  be  paid  dollars 
to  that  organization,  and  bind  themselves  to  abide  b}'  its  constitution 
and  b^'-laws  ;  that  is  to  sav,  that  no  one  who  is  a  member  of  that  organ- 
ization shall  sell  to,  or  deal  with  or  deliver  to,  an}'  person  engaged  in 
the  business  of  buying,  selling,  or  placing  tiles,  grates,  or  mantels  in 
the  cities  of  San  Francisco,  Oakland,  Sacn-amento,  and  San  Jose,  and 
other  cities  in  this  State,  unless  such  person  shall  become  a  member  of 
the  said  unincorporated  organization,  and  shall  agree  that  in  their  gen- 
eral business  of  selling  such  commodities  to  the  general  public  they 
shall  sell  them  at  such  prices  as  may  be  arbitrarily  fixed  by  the  said 
unincorporated  association.  That,  prior  to  the  formation  of  that  organ- 
ization, plaintiffs  were  doing  a  large  business  in  selling  tiles,  mantels, 
and  grates,  and  were  making  an  annual  profit  of  about  85,000.  That, 
about  the  time  of  the  formation  of  said  association,  plaintiffs  had  placed 
with  defendants  certain  orders  for  tiles  ;  but  these  orders  were  not 
filled,  but  w'ere  cancelled,  by  the  parties  with  whom  they  had  been 
placed,  for  the  reason  that  plaintiffs  did  not  belong  to,  and  would  not 
join,  said  organization.  That,  about  the  time  of  the  formation  of  the 
association,  plaintiffs  had  placed  orders  for  tiles  with  the  Columbia 
Encaustic  Tile  Company,  which  cancelled  plaintiffs'  orders  because 
plaintiffs  did  not  belong  to  the  Tile,  Mantel  and  Grate  Association. 
Tiiat  said  organization  is  within  the  statute  of  the  51st  Congress, 
passed  and  approved  July  2,  1890,  known  as  "  Chapter  647,  Supple- 
ment to  the  Revised  Statutes  at  Large  of  the  United  States."  That, 
by  reason  of  the  monopoly  of  such  association,  plaintiffs  are  damaged 
in  the  sum  of  $10,000.  Plaintiffs  pray  for  treble  the  sum  of  810.000,  in 
accordance  with  the  provisions  of  the  above-named  act,  and  for  further 
equitable  relief  The  ground  of  demurrer  was  that  the  amended  com- 
l)laint  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

The  case  of  U.  S.  v.  Jellico  Mountain  Coal  &  Coke  Co.  (C.  C),  46 
Fed.  432,  12  L.  R.  A.  753,  is  in  point.  The  action  was  brouglit  un- 
der the  antitrust  act  against  the  members  of  the  Nashville  Coal  Ex- 
change. The  purpose  of  the  agreement  in  that  case  was  to  establish 
the  price  of  coal  at  Nashville,  and  to  change  the  same  from  time  to 


LOWKY   V.    TILE,    MANTEL   AND    GKATE   ASSOCLITION.  95 

time.  Members  found  guilty  of  selling  coal  at  a  less  price  than  tlie 
price  fixed  by  the  exchange,  either  directly  or  indirectly,  were  fined 
two  cents  per  bushel  and  §10  for  the  first  offence,  and  four  cents  per 
bushel  and  $20  for  the  second  offence.  Owners  or  operators  of  mines 
were  not  to  sell  or  ship  coal  to  any  persons,  firms,  or  corporations  in 
Nasiiville  who  were  not  niL-mbers  of  the  exchange,  and  dealers  were 
not  to  buy  coal  from  any  one  but  a  member  of  the  exchange.  The 
court,  commenting  upon  the  agreement  of  this  association  of  coal  deal- 
ers, said : 

"This  clearly  indicates  the  purpose  of  the  association  to  be  to  con- 
trol the  price  of  coal  in  the  Nashville  market  used  in  manufacturincr 
and  in  steamboats  whenever  it  could  ;  that  the  mines  of  coal  tributary 
to  Nashville  were  all  expected  to  become  members  of  the  exchange, 
whereupon  the  prices  of  coal  could  be  fixed  absolutely  ;  and  the  neces- 
sary inference  from  this  declaration  and  the  entire  organic  structure  of 
the  body  is  that  it  felt  strong  enough  already  to  regulate  and  establish 
the  prices  of  domestic  coal  in  that  market  to  a  large  extent,  at  least, 
and  that  this  exchange  might  now  monopolize  the  business  of  dealing 
in  domestic  coal  in  the  Nashville  market,  and  in  the  future  monopolize 
by  and  confine  to  its  membership  the  entire  trade  in  coal  at  that  point. 
It  seems  to  me  that  the  purposes  and  intention  of  the  association  could 
hardly  have  been  more  successfully  framed  to  fall  within  the  provisions 
of  the  act  of  Jul}'  2,  1890,  had  the  object  been  to  organize  a  combina- 
tion, the  business  of  which  should  subject  it  to  the  penalties  of  that 
statute  ;  and  there  is  no  need  of  authorities  to  sustain  such  view  of  the 
case." 

In  the  case  of  U.  S.  v.  Coal  Dealers'  Ass'n  (C.  C),  85  Fed.  252,  the 
bill  alleged  that  defendants  comprised  all  the  wholesale  dealers  hand- 
ling coal  in  San  Francisco,  and  they,  together  with  certain  retail 
dealers,  had  conspired  with  intent  to  monopolize  the  coal  trade  and 
commerce  between  British  Columbia,  Washington,  and  Oregon,  to  the 
extent  of  the  coal  used  for  domestic  purposes  in  the  city  of  San  Fran- 
cisco.    It  was  said  b}'  this  court  in  that  case  : 

"  But  the  agreement  of  the  importers  and  wholesale  dealers,  which 
alone  gives  life  and  force  to  the  combination,  is  directed  specifically  to 
the  maintenance  of  card  rates  for  certain  imported  coals,  bj'  name  ; 
and  it  is  this  agreement,  and  what  may  be  accomplished  under  it  by  the 
combination,  that  is  to  be  considered,  and  not  what  it  may  be  doing  at 
any  particular  time." 

in  U.  S.  V.  Addyston  Pipe  &  Steel  Co.,  54  U.  S.  App.  723,  29  C. 
C.  A.  141,  and  85  Fed.  279,  the  United  States  began  proceedings  in 
equity  against  six  corporations  engaged  in  the  manufacture  of  cast-iron 
pipe  in  localities  in  Ohio,  Kentucky,  Alabama,  and  Tennessee.  The 
bill  of  complaint  charged  the  defendants  with  a  combination  and  con- 
spiracy in  unlawful  restraint  of  interstate  commerce.  It  appeared  that 
the  defendants,  who  were  manufacturers  and  vendors  of  cast-iron  pipe, 
entered  into  a  combination  to  raise  the  price  of  pipe  for  all  the  States 


96  TRANSPOliTATION    CO.    V.    STANDARD    UlL   CO. 

west  and  south  of  New  York,  Pennsylvania,  and  Virginia,  comprising 
some  thirty-six  States  in  all ;  and,  to  carry  out  this  combination,  the 
associated  defendants  entered  into  an  agreement  which  provided  certain 
methods  of  procedure  in  dealing  with  the  public,  wherein-  competition 
between  themselves  was  avoided  in  the  territory  mentioned.  The  court, 
in  an  able  opinion  reviewing  the  whole  sul)ject  of  the  law  relating  to 
combinations  and  contracts  in  restraint  of  trade,  arrived  at  the  con- 
clusion that  the  association  of  the  defendants  vvas  a  contract,  combina- 
tion, or  conspirac}'  in  restraint  of  trade,  as  the  terms  are  to  be  understood 
under  the  act  of  Jul}-  2,  IHOO.  Tiie  doctrine  of  that  case  is  applicable 
here.  The  allegations  ciiarging  conspiracy  and  combination  to  raise 
the  price  of  the  commodities  in  question,  and  of  an  agreement  b}-  the 
members  of  such  combination  to  sell  these  commodities  at  such  prices 
as  shall  be  arbitrarily  fixed  b}-  the  combination  in  question,  t(  gether 
with  the  further  allegation  that  such  comljination  has  been  made  with 
the  intent  of  monopolizing  trade  and  commerce  between  California  and 
other  States,  are  sufficient,  under  these  authorities,  to  bring  the  case 
within  the  operation  of  the  provisions  of  the  Sherman  Act.  Defend- 
ants' demurrer  upon  the  ground  of  the  insufficiency  of  the  facts  stated 
to  constitute  a  cause  of  action  cannot,  therefore,  be  sustained.^ 


TRANSPORTATION  CO.  v.  STANDARD  OIL  CO. 

CouKT  OF  Appeals,  West  Virginia,  1901. 

[40  S.  E.  Rep.  591.2] 

Brannon,  J.  The  "West  Virginia  Transportation  Company  brought 
trespass  on  the  case  in  Wood  County  against  the  Standard  Oil  Company 
and  the  Eureka  Pipe  Line  Company,  all  corporations,  and  upon  demurrer 
to  the  declaration  judgment  was  rendered  for  the  defendants.  The  first 
count  of  tlie  declaration  charges  that  the  plaintiff  was  engaged  in  the 
business  of  transporting  petroleum  oils  by  means  of  pipe  lines  and  tank 
cars  from  V^olcano  and  vicinity  to  Parkersburg,  and  in  storing  oil,  and 
had  expended  $300,000  in  acquiring  land,  rights  of  wa}-,  lines  of  tubing, 
and  other  things  necessary  in  its  business,  and  had  built  up  a  large  and 
lucrative  l)usiness,  and  that  the  defendants  maliciously  and  wickedly 
contriving  and  intending  to  injure  the  plaintiflf  and  ruin  its  business, 
and  render  its  plant  and  property  worthless,  and  deprive  it  of  all  its 

1  Compare:  Addyston  Pipe  Co.  v.  U.  S.,  IT.t  U.  S.,  211  ;  U.  S.  v.  Fuel  Co.,  10.5  Fed. 
9.3  ;  Mill  Co.  !'.  Hayes,  76  Cal.  387  ;  Houston  v.  Reullinojer,  91  Ky.33.3  ;  People  r.  I)i,^- 
tilling  Co.,  1.56  HI.  1  ;  S.  i'.  Fireman's  A.ss'n,  152  Mo.  44  ;  People  v.  Sheldon,  130  N.  Y. 
251  ;  Morris  Run  Co.  v.  Barclay  Co.,  68  Pa.  St.  173;  S.  v.  Oil  Co.,  49  Oh.  St.  137; 
S.  V.  Distilling  Co.,  29  Neb.  700.  —  Ed. 

2  This  ca.se  is  abridged.  —  Ed. 


TRANSPORT ATION    CO.   V.    STANDARD    OIL    CO.  97 

business,  did  confederate  and  conspire  together  and  with  the  "West  Vir- 
ginia Oil  Compan}-,  another  corporation,  and  with  C.  H.  Shattuck  and 
other  persons  unknown  to  the  plaintiff,  to  prevent  all  persons  produc- 
ing, refining,  selling,  or  transporting  oils,  and  particularly  to  prevent 
the  plaintiff  from  transporting  oils  through  its  pipe  lines  and  b}-  means 
of  its  tank  cars,  and  from  storing  oil  in  its  storage  tanks,  and  from 
executing  any  lawful  trade  in  connection  therewith.  And  it  charged 
also  that  the  Standard  Oil  Compan}'  of  New  Jerse}'  organized  about 
1891,  and  was  the  successor  of  all  corporations  and  firms  prior  to  that 
date  associated  together  under  a  contract  known  as  the  Standard  Oil 
Trust ;  that  the  Camden  Consolidated  Oil  Company  was  a  member 
of  the  said  trust,  and  under  its  control ;  that  in  1892  the  business  and 
property  of  said  trust  were  reorganized  under,  and  are  now  controlled 
by,  the  Standard  Oil  Company,  and  controlled  by  the  same  men  for- 
merly owning  and  controlling  said  Standard  Oil  Trust;  that  the  Eureka 
Pipe  Line  Compan}'  is  owned,  controlled,  and  operated  by  the  same 
men,  and  doing  business  in  the  interest  of  the  Standard  Oil  Company, 
and  is  a  transportation  branch  of  that  company ;  that  the  West  Virginia 
Oil  Company  was  organized  about  1885  to  purchase  and  operate  what 
was  known  as  the  property  of  the  West  Virginia  Oil  and  Land  Com- 
pau}-,  a  territory  on  which  the  plaintiff  had  laid  pipe  lines,  and  from 
which  it  had  for  several  years  transported  oil  for  compensation;  that 
the  Standard  Oil  Trust,  through  individuals  interested  in  it,  had  be- 
come a  large  stockholder  in  the  West  Virginia  Oil  Company,  and 
dictated  its  management ;  and  b}-  means  thereof,  and  of  its  monopoly' 
of  the  production,  refining,  and  transportation  of  oil  throughout  the 
world,  practicalh'  controlled  the  business  of  said  West  Virginia  Oil 
Company,  and  since  the  reorganization  of  the  Standard  Oil  Trust  by  the 
organization  of  the  Standard  Oil  Company  had  continued  to  do  so,  and 
had  induced  the  construction  of  the  Eureka  Pipe  Line  Company,  and 
thus  ruined  the  business  of  the  plaintiff ;  that  this  was  the  object 
and  accomplishment  of  the  said  combination  and  malicious  conspirac}'. 
What  wrongful  acts  does  this  first  count  state  ?  The  formation  of 
trade  combination  —  call  it  ''  monopoly  "  —  is  hot  actionable  alone. 
How  far  the  grant  of  exclusive  privilege  b}'  the  State  (and  this  is  the 
only  monopoly,  legall}'  speaking)  is  valid  when  its  right  is  contested, 
is  one  thing.  We  are  not  dealing  with  that.  This  monopoly  is  not 
that.  It  is  the  act  of  persons  and  corporations,  by  union  of  means  and 
effort,  drawing  to  themselves,  in  the  field  of  competition,  the  lion's 
share  of  trade.  This  is  not  monopoly  condemned  by  law.  The  lion 
has  sti'etched  out  its  paws  and  grabbed  in  prey  more  than  othei's,  but 
that  is  the  natural  right  of  the  lion  in  the  field  of  pursuit  and  capture. 
Pity  that  the  Hon  exists,  his  competing  animals  may  say  :  but  natural 
law  accords  the  right,  it  is  given  him  by  the  Maker  for  existence. 
The  State  made  the  Standard  Oil  Company,  and  gave  it  this  right  of 
being  and  working.  Better  for  its  competitors  were  it  not  so.  What 
other  acts  besides  the  formation  of  this  engrossing  association  does  the 

7 


98  TRANSPORTATION   CO.   V.    STANDARD   OIL   CO. 

first  count  charge?  That  it  caused  the  West  Virginia  Oil  Company  to 
build  a  pipe  line  from  its  propert}*  to  the  Baltimore  &  Ohio  Railroad  to 
ship  its  oil  to  the  refiner}'  of  the  Standard  Oil  Company.  Stockholders 
in  the  one  were  also  in  the  other.  Had  they  not  the  right  to  build 
this  line  to  further  their  own  interests,  to  conve}'  product  of  the  one  for 
refinement  b}'  another?  A  man  owning  a  farm,  and  also  interested  in 
a  mill,  may  not  the  mill  owners  induce  the  farmer  to  build  some  means 
of  transporting  his  wheat  to  that  mill,  without  being  liable  to  suit  by  a 
man  owning  a  railroad  which  had  been  accustomed  to  carry  wheat  from 
that  farm?  And  suppose  there  were  no  common  interest  in  the  farm 
and  mill,  cannot  the  mill  owners  induce  this  farmer  to  build  a  means  of 
transport  from  his  farm  to  their  mill?  Is  this  soliciting  trade  b}'  any 
usual  means,  a  legal  wrong  to  competitors?  The  gravest  item  under 
this  head  is  the  charge  that  the  Standard  Company  required  oil  pro- 
ducers (without  specifying  an}'  but  the  West  Virginia  Oil  Company), 
as  a  condition  precedent  to  purchasing  their  oil,  to  ship  through  said 
pipe  line,  and  required  those  producers  in  the  land  of  the  West  Vir- 
ginia Oil  Company  to  do  so  as  a  condition  precedent  to  holding  their 
leases,  notwithstanding  that  the  more  usual  and  satisfactorj-  route  of 
transport  was  the  pipe  line  of  the  plaintiff ;  and  that  later  the  defend- 
ants, through  the  Eureka  Pipe  Line  Company,  to  further  accomplish 
their  purjiose  of  ruining  the  plaintiff,  built  a  branch  pipe  line  through 
territory  which  had  for  years  patronized  the  plaintiff's  line,  in  order  to 
prevent  and  forestall  the  plaintiff  from  transacting,  acquiring,  or  main- 
taining any  business,  and  from  extending  its  line  to  any  other  territory; 
antl  that  the  defendants  and  confederates,  by  their  monopoly  and  con- 
trol over  the  oil  business,  refused  to  ship,  or  permit  others  to  ship,  oils, 
or  buy  oils  shipped  through  the  plaintiff's  line,  and,  being  the  only 
refiners  of  oil  at  Parkersburg  and  elsewhere,  refused  to  buj-  oil  shipped 
through  the  pipe  line  of  the  plaintiff.  At  first  blush  this  conduct  might 
appear  wrong ;  but  a  second  thought  again  presents  the  question 
whether  the  defendants  in  this  did  anything  unlawful.  The  defendant 
companies  were  all  in  common  interest.  Could  they  not  unite  to  fur- 
ther their  interests  ?  Could  not  the  Standard  Oil  Company  buy  from 
whom  it  chose?  And  within  the  pale  of  this  right  could  it  not  impose 
such  conditions  as  it  chose?  Cannot  the  village  merchant  say  to  the 
farmer,  "  I  will  not  buy  your  eggs  unless  3'ou  buv  nn'  calico?  "  Cannot 
the  big  mill  owner  refuse  to  buy  wheat  from  those  who  do  not  ship  it 
over  a  railroad  or  steamboat  line  owned  by  him?  Cannot  the  mill 
owner  refuse  to  lease  his  farm  to  those  who  do  not  sell  products  to  his 
mill?  He  may  be  exacting  and  oppressive,  but  can  other  mill  owners 
sue  him  for  this?  Is  this  right  not  a  part  and  parcel  of  his  business 
right?  It  is  the  right,  even  when  there  is  no  common  ownership,  as 
there  is  in  this  case,  of  one  man  to  buy  of  whom  he  chooses ;  and  he 
can  impose  arbitrary,  hard  conditions,  if  the  other  party  chooses  to 
accede  to  them.  So  it  is  the  clear  right  of  the  other  party  to  sell  to 
whom  he  chooses,  and  he  having  this  right,  how  does  the  other  party 


TRANSPORTATION    CO.    V.    STANDARD    OIL    CO.  99 

do  a  wrong  in  purchasing  from  him?  The  right  of  the  one  carries  with 
it  the  right  of  the  other.  These  producers  of  oil  had  the  right  to  sell 
to  whom  they  chose,  to  ship  their  oil  by  what  pipe  line  they  chose, 
and  they  had  the  right  to  submit  to  the  terms  of  the  Standard  Oil 
Compan}',  and  in  view  of  this  right  the  company  could  bu}-  from  v,'hora 
it  chose,  and  on  such  terms  as  it  chose ;  for  the  right  of  the  former 
would  bear  no  fruitage,  would  be  futile,  without  the  corresponding  right 
of  contract  in  the  company.  Observe  the  question  here  is  not  their 
own  interests  in  lawful  competition  with  others.  If  they  possessed  the 
lawful  right  above  stated,  what  matters  it  that  they  did  have  the  intent 
to  cut  down  the  business  of  others,  or  that  they  did  cut  it  down  and 
injure  others,  though  they  did  this  that  they  might  themselves  fatten? 
So  far  this  first  count  charges  only  the  exercise  by  the  defendants  of  a 
right  of  constitutional  libert}',  accorded  alike  to  all,  —  simply  the  right 
of  srelf-advanceraent  in  legitimate  business,  self-preservation,  we  may 
sa}".  That  in  these  days  of  sharp,  ruinous  competition  some  perish 
is  inevitable.  The  dead  are  found  strewn  all  along  the  highways  of 
business  and  commerce.  Has  it  not  always  been  so?  Will  it  always 
be  so  ?  The  evolution  of  the  future  must  answer.  "What  its  evolution 
will  be  in  this  regard  we  do  not  yet  know,  but  we  do  know  that  thus 
far  the  law  of  the  survival  of  the  fittest  has  been  inexorable.  Human 
intellect  —  human  laws  —  cannot  prevent  these  disasters.  The  dead 
and  wounded  have  no  right  of  action  from  the  working  of  this  im- 
perious law. 

We  reverse  and  remand} 

1  Compare:  Mogul  S.S.  Co.  v.  McGregor,  23  Q.  B.  D.  598;  Allen  v.  Flood,  1898 
D.  C.  1;  Quinn  v.  Leatham,  1901  A.  C.  495;  Doremns  v.  Ilennessy,  176  111.  608; 
Thurdley  v.  R.  R.,  48  S.  W.  429 ;  Guethler  v.  Altman,  60  N.  E.  355  (Ind.) ;  Brewster 
V.  Miller,  101  Ky.  368;  Graham  v.  R.  R.,  47  La.  Ann.  215;  Plant  v.  Woods,  176 
Mass.  492 ;  Bohn  Co.  v.  Hollis,  54  Minn.  223 ;  Assn.  i;.  Cummiug,  63  N.  E.  369 
(N.  Y.);  Payne  v.  R.  R.,  3  Lea,  507;  Delz  v.  Winfrees,  80  Tex.  400;  Reycroft  v. 
Traintor,  68  Vt.  219.  — Ed. 


100  JENCKS   V.   COLEMAN. 


CHAPTER  II. 

OBLIGATIONS  OF  PUBLIC  CALLING. 


Section  I.     To  serve  All. 

KING  V.  LUELLIN. 
King's  Bench,  1703. 

[12  Mod.  445.] 

The  defendant  was  master  of  the  Bell  Inn,  in  Bristol.  He  was  in- 
dicted for  not  receiving  one  taken  ill  with  the  smallpox ;  and  it  was 
quashed  for  not  saying  he  was  a  traveller. 


JENCKS  V.  COLEMAN. 
Circuit  Court  of  the  United  States,  1835. 

[2  Sum.  221.] 

Case  for  refusing  to  take  the  plaintiff  on  board  of  the  steamboat 
"Benjamin  Franklin"  (of  which  the  defendant  was  commander),  as  a 
passenger  from  Providence  to  Newport.     Plea,  the  general  issue. 


JENCKS   V.   COLEMAN.  101 

The  facts,  as  the}'  appeared  at  the  trial,  were  substantially  as  follow : 
That  the  plaintiff  was  the  agent  of  the  Tremont  Hue  of  stages,  running 
between  Providence  and  Boston  ;  that  his  object  was  to  take  passage 
in  the  boat  to  Newport,  and  tlien  go  on  board  the  steamboat  President, 
on  her  passage  from  New  York  to  Providence,  on  the  next  morning, 
for  the  purpose  of  soliciting  passengers  for  the  Tremont  line  of  stages 
for  Boston.  This  the  proprietors  of  the  President  and  Benjamin  Frank- 
lin had  prohibited,  and  had  given  notice  that  they  would  not  permit 
agents  of  that  line  of  stages  to  take  passage  in  their  boats  for  that 
purpose.  The  reason  assigned  for  such  prohibition  was,  that  it  was 
important  for  the  proprietors  of  the  steamboats,  that  the  passengers 
from  their  boats,  for  Boston,  should  find,  at  all  times,  on  their  arrival 
at  Providence,  an  immediate  and  expeditious  passage  to  Boston.  To 
insure  this  object,  the  Citizens'  Coach  Company  had  contracted  with 
the  steamboat  proprietors  to  carry  all  the  passengers,  who  wished  to 
go,  in  good  carriages,  at  reasonable  expedition  and  prices  ;  and  the 
commanders  of  tlie  steamboats  were  to  receive  the  fare,  and  make  out 
way-bills  of  the  passengers,  for  the  Citizens'  Coach  Company.  This 
they  continued  to  perform.  And,  in  order  to  counteract  the  efl["ect  of 
this  contract,  —  which  had  been  offered  the  Tremont  line,  and  de- 
clined, —  that  line  placed  an  agent  on  board  the  boats,  to  solicit 
passengers  for  their  coaches ;  and,  on  being  complained  to  by  tire 
Citizens'  Coach  Compan}-,  the  proprietors  of  the  steamboats  interdicted 
such  agents  from  coming  on  board  their  boats,  and  in  this  instance, 
refused  to  permit  the  plaintiff  to  take  passage  in  the  boat  for  Newport, 
though  he  tendered  the  customary  fare. 

The  cause  was  argued  by  H.  W.  Greene  and  Daniel  Webster  for  the 
plaintiff,  and  by  Rivers  and  Whipple  for  the  defendants. 

For  the  plaintiff  it  was  contended,  that  steamboat  proprietors  were 
common-carriers, —  and  every  person,  conducting  himself  with  propriety, 
had  a  right  to  be  carried,  unless  he  had  forfeited  that  right. 

The  plaintiff  in  this  instance  did  conduct  with  propriet}',  and  had  not 
forfeited  his  right  to  be  carried  by  any  improper  misconduct. 

The  steamboat  proprietors  and  Citizens'  Coach  Company  had  at- 
tempted to  establish  a  monopoh,  which  should  not  be  countenanced,  it 
being  against  the  public  interest.  Such  a  monopoh'  operated  to  increase 
the  price  and  prolong  the  time  of  passage  from  Providence  to  Boston  ; 
while  open  competition  promoted  the  public  interest  and  convenience, 
by  reducing  the  fare  and  expediting  the  passage. 

The  plaintiff,  in  this  instance,  requested  to  be  conveyed  from  Provi- 
dence to  Newport ;  during  which  passage,  it  was  well  known,  no  pas- 
sengers were  to  be  solicited,  —  that  was  to  be  done  only  on  the  passage 
from  Newport  to  Providence. 

For  the  defendant,  it  was  contended,  that  the  contract  made  b}-  the 
steamboat  proprietors  and  the  Citizens'  Compan}*,  was  legal,  and  sub- 
served the  public  convenience,  and  the  interest  of  the  proprietors  of  the 
boats  and  stages ;  it  insured  to  the  passengers  expeditious  passages 


102  JENCKS   V.   COLEMAN. 

at  reasonable  prices ;  that  the  regulation,  excluding  the  agents  of  the 
Tremont  line  of  stages  from  the  steamboats,  was  legal  and  just,  because 
it  was  necessary  to  promote  the  foregoing  objects,  to  wit :  the  public 
convenience,  and  the  interests  of  the  proprietors  of  both  the  boats  and 
stages.  Of  this  interdiction  the  plaintitf  had  received  notice,  and  had 
no  legal  right  to  complain. 

Story,  J.,  in  summing  up  to  the  jurj-,  after  recapitulating  the  evi- 
dence, said  :  There  is  no  doubt,  that  this  steamboat  is  a  common  carrier 
of  passengers  for  hire;  and,  therefore,  the  defendant,  as  commander, 
was  bound  to  take  the  plaintiff  as  a  jjassenger  on  board,  if  he  had  suit- 
able accommodations,  and  there  was  no  reasonable  objection  to  the 
character  or  conduct  of  the  plaintiff.  The  question,  then,  reall}-  resolves 
itself  into  the  mere  consideration,  whether  there  was,  in  the  present 
case,  upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
right,  but  it  is  subject  to  such  reasonable  regulations  as  the  propri- 
etors may  prescribe,  for  the  due  accommodation  of  passengers  and  for 
the  due  arrangements  of  their  business.  The  proprietors  have  not  onl}' 
this  right,  but  the  farther  right  to  consult  and  provide  for  their  own  in- 
terests in  the  management  of  such  boats,  as  a  common  incident  to  their 
right  of  property.  They  are  not  bound  to  admit  passengers  on  board 
who  refuse  to  obey  the  reasonable  regulations  of  the  boat,  or  who  are 
guilt}"  of  gross  and  vulgar  habits  of  conduct ;  or  who  make  disturbances 
on  board  ;  or  whose  characters  are  doubtful  or  dissolute  or  suspicious  ; 
and,  a  fortiori,  whose  characters  are  unequivocally  bad.  Nor  are  they 
bound  to  admit  passengers  on  board  whose  object  it  is  to  interfere 
with  the  interests  or  patronage  of  the  proprietors,  so  as  to  make  the 
business  less  lucrative  to  them. 

AYhile,  therefore,  I  agree  that  steamboat  proprietors,  holding  them- 
selves out  as  common  carriers,  are  bound  to  receive  passengers  on 
board  under  ordinar}'  circumstances,  I  at  the  same  time  insist  that 
they  may  refuse  to  receive  them  if  there  be  a  reasonable  objection. 
And  as  passengers  are  bound  to  obey  the  orders  and  regulations  of  the 
proprietors,  unless  they  are  oppressive  and  grossly  unreasonable,  who- 
ever goes  on  board,  under  ordinary  circumstances,  impliedly  contracts 
to  obey  such  regulations ;  and  may  justly  be  refused  a  passage,  if  he 
wilfull}'  resists  or  violates  them. 

Now.  what  are  the  circumstances  of  the  present  case?  Jencks  (the 
plaintiff)  was,  at  the  time,  the  known  agent  of  the  Tremont  line  of 
stage  coaches.  The  proprietors  of  the  Benjamin  Franklin  had,  as  he 
well  knew,  entered  into  a  contract  with  the  owners  of  another  line  (the 
Citizens'  Stage  Coach  Company)  to  bring  passengers  from  Boston  to 
Providence,  and  to  carry  passengers  from  Providence  to  Boston,  in 
connection  with  and  to  meet  the  steamboats  plying  between  New  York 
and  Providence,  and  belonging  to  the  proprietors  of  the  Franklin. 
Such  a  contract  was  important,  if  not  indispensable,  to  secure  uni- 
formity, punctuality,  and  certainty  in  the  carriage  of  passengers  on 


JENCKS   V.   COLEMAN.  103 

both  routes  ;  and  might  be  material  to  the  interests  of  the  proprietors 
of  those  steamboats.  Jencks  had  been  in  the  habit  of  coming  on  board 
these  steamboats  at  Providence,  and  going  therein  to  Newport ;  and 
coramonh'  of  coming  on  board  at  Newport,  and  going  to  Providence, 
avowedly  for  the  purpose  of  soliciting  passengers  for  the  Tremont  line, 
and  thus  interfering  with  the  patronage  intended  to  be  secured  to  the 
Citizens'  line  by  the  arrangements  made  with  the  steamboat  proprietors. 
He  had  the  fullest  notice  that  the  steamboat  proprietors  had  forbidden 
any  person  to  come  on  board  for  such  purposes,  as  incompatible  with 
their  interests.  At  the  time  when  he  came  on  board,  as  in  the  decla- 
ration mentioned,  there  was  every  reason  to  presume  that  he  was  on 
board  for  his  ordinary  purposes  as  agent.  It  has  been  said  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives.  I  cannot 
admit  that  point.  I  think  that  the  proprietors  had  a  right  to  inquire 
into  such  intent  and  motives  ;  and  to  act  upon  the  reasonable  presump- 
tions which  arose  in  regard  to  them.  Suppose  a  known  or  suspected 
thief  were  to  come  on  board  ;  would  they  not  have  a  right  to  refuse 
him  a  passage?  Might  the}'  not  justl}'  act  upon  the  presumption  that 
his  object  was  unlawful?  Suppose  a  person  were  to  come  on  board, 
who  was  habitually  drunk,  and  gross  in  his  behavior,  and  obscene  in 
his  language,  so  as  to  be  a  public  annoyance  ;  might  not  the  proprietors 
refuse  to  allow  him  a  passage?  I  think  they  might,  upon  the  just 
presumption  of  what  his  conduct  would  be. 

It  lias  been  said  by  the  learned  counsel  for  the  plamtiff,  that  Jencks 
was  going  from  Providence  to  Newport,  and  not  coming  back;  and 
that  in  going  down,  there  would,  from  the  verj-  nature  of  the  object, 
be  no  solicitation  of  passengers.  That  does  not  necessaril}-  follow ; 
for  he  might  be  engaged  in  making  preliminary  engagements  for  the 
return  of  some  of  them  back  again.  But,  supposing  there  were  no 
such  solicitations,  actual  or  intended,  I  do  not  think  the  case  is  essen- 
tially changed.  I  think  that  the  proprietors  of  the  steamboats  were 
not  bound  to  take  a  passenger  from  Providence  to  Newport,  whose  ob- 
ject was,  as  a  stationed  agent  of  the  Tremont  line,  thereb}-  to  acquire 
facilities  to  enable  him  successfiiU}'  to  interfere  with  the  interests  of 
these  proprietors,  or  to  do  them  an  injur}-  in  their  business.  Let  us  take 
the  case  of  a  ferryman.  Is  he  bound  to  carr}'  a  passenger  across  a  ferry, 
whose  object  it  is  to  commit  a  trespass  upon  his  lands?  A  case  still 
more  strongh'  in  point,  and  which,  in  my  judgment,  completely  meets 
the  present,  is  that  of  an  innkeeper.  Suppose  passengers  are  accus- 
tomed to  breakfast,  or  dine,  or  sup  at  his  house  ;  and  an  agent  is  em- 
ployed b}'  a  rival  house,  at  the  distance  of  a  few  miles,  to  decoy  the 
passengers  awa}'  the  moment  they  arrive  at  the  inn ;  is  the  innkeeper 
bound  to  entertain  and  lodge  such  agent,  and  thereby  enable  him  to 
accomplish  the  very  objects  of  his  mission,  to  the  injur}'  or  ruin  of 
his  own  interests?     I  think  not. 

It  has  been  also  said,  that  the  steamboat  proprietors  are  bound  to 
carry  passengers  only  between  Providence  and  New  York,  and  not  to 


104  JENCKS   V.    COLEMAN. 

transport  them  to  Boston.  Be  it  so,  that  they  are  not  absolutely  bound. 
Yet  they  have  a  right  to  make  a  contract  for  this  latter  purpose,  if  they 
choose  ;  and  especiallj'  if  it  will  facilitate  the  transportation  of  passen- 
gers, and  increase  the  patronage  of  their  steamboats.  I  do  not  say 
that  the}-  have  a  right  to  act  oppressively  in  such  cases.  But  certainly 
they  ma}^  in  good  faith  make  such  contracts,  to  promote  their  own,  as 
well  as  the  public  interests. 

The  onl}-  real  question,  then,  in  the  present  case  is,  whether  the  con- 
duct of  the  steamboat  proprietors  has  been  reasonable  and  bona  fide. 
The}'  have  entered  into  a  contract  with  the  Citizens'  line  of  coaches 
to  carry  all  their  passengers  to  and  from  Boston.  Is  this  contract 
reasonable  in  itself;  and  not  designed  to  create  an  oppressive  and  mis- 
chievous monopoly?  There  is  no  pretence  to  sa}'  that  any  passenger 
in  the  steamboat  is  bound  to  go  to  or  from  Boston  in  the  Citizens'  line. 
He  may  act  as  he  pleases.  It  has  been  said  by  the  learned  counsel  for 
the  plaintiff,  that  free  competition  is  best  for  the  public.  But  that  is 
not  the  question  here.  Men  may  reasonably  differ  from  each  other  on 
that  point.  Neither  is  the  question  here,  whether  the  contract  with  the 
Citizens'  line  was  indispensable,  or  absolutely  necessary,  in  order  to 
ensure  the  carriage  of  the  passengers  to  and  from  Boston.  But  the 
true  question  is,  whether  the  contract  is  reasonable  and  proper  in  itself, 
and  entered  into  with  good  faith,  and  not  for  the  purpose  of  an  oppres- 
sive monopoly'.  If  the  jury  find  the  contract  to  be  reasonable  and  proper 
in  itself  and  not  oppressive,  and  they  believe  tiie  purpose  of  Jencks  in 
going  on  board  was  to  accomplish  the  olyects  of  his  agency,  and  in 
violation  of  the  reasonable  regulations  of  the  steamboat  proprietors, 
then  their  verdict  ought  to  be  for  the  defendant ;  otherwise,  to  be  for 
the  plaintiff. 

Webster,  for  the  plaintiff,  then  requested  the  Court  to  charge :  That 
the  jury  must  be  satisfied  that  this  agreement  was  necessary  or  clearly 
expedient  for  the  public  interest,  and  the  interest  of  the  proprietors  of 
the  boats,  or  otherwise  the  captain  of  the  boat  could  not  enforce  it,  by 
refusing  the  plaintiff  a  passage  ;  Or,  that  the  defendant  must  show  that 
the  substantial  interest  of  the  proprietors,  or  of  the  public,  required  an 
arrangement,  such  as  they  had  entered  into,  in  order  to  justify  their 
refusal  to  carry  the  plaintiff  for  the  cause  assigned. 

The  Court  refused  to  give  instruction  in  the  manner  and  form  as 
prayed  ;  but  did  instruct  the  jury,  that  it  is  not  necessary  for  the  de- 
fendant to  prove,  that  the  contract  in  the  case  was  necessary  to  accom- 
plish the  objects  therein  stated ;  but  it  is  sufficient,  if  it  was  entered 
into  by  the  steamboat  proprietors  bona  fide  and  purely  for  the  purpose 
of  their  own  interest,  and  tlie  accommodation  of  the  public,  from  their 
belief  of  its  necessity,  or  its  utilit}-.  If  the  jury  should  be  of  opinion 
that,  under  all  the  circumstances  of  the  case,  it  was  a  reasonable  con- 
tract, and  the  exclusion  of  the  plaintiff  was  a  reasonable  and  proper 
regulation  to  carry  it  into  effect  on  the  part  of  tlie  steamboat  propri- 
etors, then  their  verdict  ought  to  be  in  favor  of  the  defendant ;  other- 
wise, in  favor  of  the  plaintiff.  Verdict  for  defendant. 


BENNETT   V.   BUTTON.  105 

BENNETT   v.   BUTTON. 
Supreme  Court  of  New  Hampshire,  1839. 

[10  N.  H.  481.] 

Case.  The  declaration  alleged  that  the  defendant  was  part  owner, 
and  driver,  of  a  public  stage  coach,  from  Nashua  to  Amherst  and 
Francestown  —  that  on  the  31st  January,  1837,  the  plaintiff  applied  to 
him  to  be  received  into  his  coach,  at  Nashua,  and  conveyed  from  thence 
to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the  defend- 
ant, although  there  was  room  in  his  coach,  refused  to  receive  the 
plaintiff. 

It  appeared  in  evidence  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages,  running  between  Lowell,  in 
Massachusetts,  and  Nashua  —  that  Jonathan  B.  French  was  the  pro- 
prietor of  one  of  these  lines,  and  Nelson  Tuttle  of  the  other  —  that 
Tutlle's  line  ran  no  farther  than  from  Lowell  to  Nashua  —  that  French 
and  the  proprietors  of  the  defendant's  line  were  interested  in  a  contract 
for  carrying  the  United  States  mail  from  Lowell  to  Francestown,  through 
Amherst  (dividing  the  mail  money  in  proportion  to  the  length  of  their 
respective  routes),  so  as  to  form  one  continuous  mail  route  from  Lowell 
to  Francestown  —  that  French  and  the  proprietors  of  the  defendant's 
line  had  agreed  to  run  their  respective  coaches  so  as  to  form  a  contin- 
uous line  for  passengers  from  Lowell,  through  Amherst,  to  Frances- 
town,  and  that  their  agents  and  drivers  might  engage  seats  for  the 
whole  distance,  at  such  rates  of  fare  as  they  thought  expedient ;  and 
the  amount  thus  received,  in  instances  where  they  thought  proper  to 
receive  less  than  the  regular  fare,  was  to  be  divided  between  said  pro- 
prietors, in  proportion  to  the  length  of  their  respective  routes  —  that  it 
was  also  agreed  that  if  the  defendant's  line  brought  down  to  Nashua  an 
extra  number  of  passengers,  French  should  see  them  through,  and  be 
at  the  expense  of  furnishing  extra  coaches  and  horses,  if  necessary,  to 
convey  them  to  Lowell ;  and,  on  the  other  hand,  if  French's  line  brought 
up  an  extra  number  of  passengers  from  Lowell  to  Nashua,  the  proprietors 
of  the  defendant's  line  were  to  do  the  same,  for  the  convej'ance  of  such 
passengers  above  Nashua  —  and  that  it  was  further  agreed  (as  Tuttle's 
line  ran  no  farther  than  from  Lowell  to  Nashua)  by  the  proprietors  of 
the  defendant's  line,  that  they  would  not  receive  into  their  coaches,  at 
Nashua,  passengers  for  places  above  Nashua,  who  came  up  from 
Lowell  to  Nashua  on  the  same  da}-,  in  Tuttle's  line  ;  the  time  of  start- 
ing from  Lowell  and  arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is,  that  each  line  of  stage 
coaches  running  into  another,  so  as  to  form  a  continuous  mail  line,  shall 
give  preference  to  passengers  arriving  in  the  line  with  which  it  connects, 
and  shall  forward  tliem  in  preference  to  an}'  others. 

There  were  several  other  lines  which  started  from  Lowell  at  the  same 
time  with  the  lines  before  mentioned,  running  to  other  places,  through 


106  BENNETT   V.   BUTTON. 

Nashua  ;  and  it  was  generall}'  the  understanding  between  their  respec- 
tive proprietors  that  one  Une  should  not  take,  for  a  part  of  tiie  distance 
where  tlie  route  was  the  same,  passengers  who  were  going  on  further 
in  another  line ;  though  this  understanding  had  been  occasionally 
interrupted. 

The  plaintiff  being  at  Lowell  on  the  31st  of  Januar}',  1837,  took  pas- 
sage and  was  conve3'ed  to  Nashua  in  Tuttle's  line  ;  and  immediately 
on  his  arrival  at  Nashua  applied  to  be  received  into  the  defendant's 
coach,  and  tendered  the  amount  of  the  regular  fare.  There  was  room 
for  the  plaintiff  to  be  conveyed  on  to  Amherst,  but  the  defendant 
refused  to  receive  him. 

The  plaintiff  was  notified  by  the  agent  for  the  line  of  French  and  the 
defendant,  at  Lowell,  previous  to  taking  passage  in  Tuttle's  coach  for 
Nashua,  that  if  he  wished  to  go  from  Nashua  to  Amherst  on  that  day, 
in  the  regular  mail  line,  he  must  take  the  mail  line  at  Lowell ;  and  that 
if  he  took  passage  in  Tuttle's  line  from  Lowell  to  Nashua  he  would  not 
be  received  at  Nashua  into  the  defendant's  coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the  plaintiff 
for  nominal  damages,  or  for  the  defendant,  according  to  the  opinion  of 
this  court  upon  these  facts. 

Clark  c&  G.  Y.  Sawyer,  for  the  plaintiff,  cited  Story  on  Bailment, 
380;  2  Ld.  Raym.  909,  Coggs  v.  Bernard;  Jones  on  Bailment,  109; 
2  Barn.  &  Adolph.  803,  Kent  v.  Shuckard. 

Baker  (with  whom  was  C.  G.  Atherton),  for  the  defendant.  It  is 
not  denied  that  ancientl}'  a  common  carrier  was  liable  for  refusing  to 
carry  goods  ;  a  common  innkeeper  for  refusing  to  receive  a  guest ;  a 
common  ferryman  for  refusing  to  carry  a  passenger ;  and  generally, 
perhaps,  that  there  was  an  implied  obligation  upon  every  one  standing 
before  the  public  in  a  particular  profession  or  employment  to  undertake 
the  duties  incumbent  upon  it ;  though  no  case  is  recollected  in  which  it 
has  been  determined  that  the  proprietor,  of  a  stage  coach  is  liable  for 
refusing  to  receive  a  passenger.  2  Black.  451  ;  3  Black.  165  ;  1  Bac. 
Ab.  554  ;  1  Vent.  333  ;  2  Show.  327;  Hard.  163  ;  Rob.  Ent.  103. 

Formerly  it  was  held  that  where  a  man  was  bound  to  nny  duty,  and 
chargeable  to  a  certain  extent  by  operation  of  law,  he  could  not,  by  an}' 
act  of  his  own,  discharge  himself  (1  Esp.  R.  36;  Noy's  Maxims,  92; 
Doc.  «fe  Stud.  270),  though  it  is  now  well  settled  that  this  obligation 
ma}'  be  limited. 

A  liability  for  refusing  to  receive  a  passenger  may  be  qualified  by 
notice.  Without  notice  a  common  carrier  stands  in  the  situation  of  an 
insurer.  This  obligation  the  law  imposes  upon  him  the  moment  he 
takes  upon  himself  the  duties  of  carrier.  His  contract  with  the  public 
is  as  an  insurer;  and  if  goods  are  committed  to  his  care  while  stand- 
ing in  this  relation,  he  is  liable  as  such.  6  Johns.  160;  3  Esp.  127; 
Selw.  N.  P.  395  ;  1  Wils.  181 ;  1  Inst.  89  ;  IT.  R.  33,  57;  5  T.  R. 
389  ;  Story  on  Bailment,  328  ;  11  Pick.  42  ;  4  N.  H.  Rep.  306. 

But  this  contract,  which  is  general  with  the  public,  ma}'  be  made 


BENNETT   V.   BUTTON.  107 

special.  One  who  proposes  to  carry  goods  may  undertake  the  business, 
not  of  a  common,  but  of  a  special,  carrier.  He  may  give  notice,  when 
he  commences  business,  that  he  does  not  assume  all  the  responsibilities 
of  a  common  carrier,  technically  so  called ;  that  he  will  be  liable  to  a 
certain  extent,  and  upon  certain  conditions,  and  no  farther.  He  ma}' 
thus  discharge  himself  from  all  responsibility,  except  perhaps  in  cases 
of  oross  negligence.  3  Stark.  337;  3  Camp.  27;  Story  on  Bail.  338, 
357;  3  Taunt.  271  ;  4  Camp.  41  ;  Jones  on  Bail.  104  ;  6  East,  5(34  ;  4 
Esp.  178  ;  1  H.  Black.  298.  But  the  carrier  is  not  liable  for  refusing 
to  receive  what  he  is  under  no  obligation  to  carrj-  (16  East,  244),  so 
that  the  carrier  of  goods  may  not  only  qualify  his  responsibility  for  the 
safe  transportation  of  goods,  but  his  liabihty  for  refusing  to  receive 
them. 

The  principle  to  be  derived  from  these  cases,  and  upon  which  they 
all  rest,  is,  that  although  the  law  imposes  certain  obligations  upon  one 
who  undertakes  the  duties  of  a  particular  profession  or  employment,  he 
is  at  liberty  to  assume  those  duties  but  in  part,  and  thus  limit  his  re- 
sponsibility, provided  he  gives  notice  of  his  intention,  generally,  and 
that  notice  is  brought  home  to  the  knowledge  of  the  party  interested. 
The  principle  is  confined  to  no  one  branch  or  department  of  business  ; 
to  no  one  case  or  class  of  cases.  Nothing  more  is  required  than  that 
public  notice  should  be  given  how  far  the  carrier  intends  to  limit  his 
responsibility,  and  that  it  should  be  known  to  the  person  to  be  affected 
by  it  in  season  to  save  his  interest.  The  main  point  is  to  show  the  in- 
tention of  the  carrier,  and  to  communicate  knowledge  of  his  terms, 
seasonablv,  to  the  individual  interested.  5  East,  510;  2  Camp.  108; 
1  Stark.  Cas.  418;  2  Ditto,  461  ;  4  Burr.  2298;  1  Str.  145;  1  Bac. 
Abr.  556  ;  2  Stark.  Ev.  338  ;  1  Pick.  50.  And,  provided  the  intention 
be  manifest,  it  is  not  material  whether  any  other  person  may  have 
known  the  conditions,  except  the  party  whose  interest  they  may  affect. 
1  Str.  145  ;   4  Burr.  2298  ;  2  Stark.  Cas.  461. 

But,  yielding  these  points,  it  is  contended  that  the  defendant  is  not 
liable.  It  was  competent  for  him  to  make  all  such  i-ules  and  regula- 
tions as  might  be  necessary  for  the  convenient  and  successful  prosecu- 
tion of  the  employment  in  which  he  was  engaged.  To  prosecute  this 
employment,  to  discharge  his  duties  to  the  public,  and  particularly  to 
the  post-office  department,  it  became  necessary  that  some  such  arrange- 
ment as  this  should  be  made.  It  was  as  proper  that  he  should  prescribe 
the  place  where  a  passenger  should  be  received  as  the  time  when  he 
should  be  received.  It  was  not  a  refusal  to  receive  all  passengers,  or 
this  one  in  particular,  but  merely  the  regulation  of  the  mode  in  which 
they  would  be  received.  Persons  going  from  Nashua  to  Fraucestown 
were  received  at  Nashua.  Persons  going  from  Lowell  to  Francestovvn 
were  received  at  Lowell.  This  was  all  that  the  defendant  did.  It  was 
a  mere  regulation  ;  not  a  refusal  to  discharge  a  duty  imposed  by  law. 

Parker,  C.  J.  It  is  well  settled  that  so  long  as  a  common  carrier 
has  convenient  room  he  is  bound  to  receive  and  carry  all  goods  which 


108  BENNETT   V.    BUTTON. 

are  offered  for  transportation,  of  the  sort  be  is  accustomed  to  carry,  if 
they  are  brought  at  a  reasonable  time,  and  in  a  suitable  condition. 
Story  on  Bailment,  328  ;  5  Bing.  R.  217,  Riley  v.  Home. 

And  stage  coaches,  which  transport  goods  as  well  as  passengers,  are, 
in  respect  of  such  goods,  to  be  deemed  common  carriers,  and  respon- 
sible accordingly.     Story,  325. 

Carriers  of  passengers,  for  hire,  are  not  responsible,  in  all  particulars, 
like  common  carriers  of  goods.  They  are  not  insurers  of  personal 
safet}'  against  all  contingencies  except  those  arising  from  the  acts  of 
God  and  the  public  enemy.  For  an  injury  happening  to  the  person  of 
a  passenger  by  mere  accident,  without  fault  on  their  part,  they  are  not 
responsible  ;  but  are  liable  only  for  want  of  due  care,  diligence,  or  skill. 
This  results  from  the  different  nature  of  the  case.  But  in  relation  to 
the  baggage  of  their  passengers,  the  better  opinion  seems  to  be  that 
they  are  responsible  like  other  common  carriers  of  goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage  coach,  for  the 
regular  transportation  of  passengers,  for  hire,  from  place  to  place,  are, 
as  in  the  case  of  common  carriers  of  goods,  bound  to  take  all  passengers 
who  come,  so  long  as  they  have  convenient  accommodation  for  their 
safe  carriage,  unless  there  is  a  sufficient  excuse  for  a  refusal.  2  Sumner, 
221  ;  Jencks  v.  Coleman  ;  19  Wend.  R.  239. 

The  principle  which  requires  common  carriers  of  goods  to  take  all  that 
are  offered,  under  the  limitations  before  suggested,  seems  well  to  apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive  all 
comers.  8  N.  H.  Rep.  523,  Markham  v.  Brown.  The  character  of  the 
applicant,  or  his  condition  at  the  time,  may  furnish  just  grounds  for  his 
exclusion.  And  his  object  at  the  time  may  furnish  a  sufficient  excuse 
for  a  refusal ;  as,  if  it  be  to  commit  an  assault  upon  another  passenger, 
or  to  injure  the  business  of  the  proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of  pas- 
sengers, for  hire,  in  his  stage  coach,  from  Nashua  to  Amherst,  at  the 
time  of  the  plaintiff's  application.  It  is  admitted  there  was  room  in 
the  coach,  and  there  is  no  evidence  that  he  was  an  improper  person  to 
be  admitted,  or  that  he  came  within  any  of  the  reasons  of  exclusion 
before  suggested. 

It  has  been  contended  that  the  defendant  was  onl}-  a  special  carrier 
of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  persons  gen- 
erally ;  but  the  facts  do  not  seem  to  show  a  holding  out  for  special  em- 
ployment. He  was  one  of  the  proprietors,  and  the  driver,  of  a  line  of 
stages,  from  Nashua  to  Amherst  and  Francestown.  They  held  them- 
selves out  as  general  passenger  carriers  between  those  places.  But  bj' 
reason  of  their  connection  with  French's  line  of  stages  from  Lowell  to 
Nashua,  they  attempted  to  make  an  exception  of  persons  who  came 
from  Lowell  to  Nashua  in  Tuttle's  stage,  on  the  same  day  in  which  they 
applied  for  a  passage  for  the  north.  It  is  an  attempt  to  limit  their  re- 
sponsibilit}'  in  a  particular  case  or  class  of  cases,  on  account  of  their 
agreement  with  French. 


BENNETT   V.  BUTTON.  109 

It  is  further  contended,  that  the  defendant  and  other  proprietors  had 
a  right  to  make  rules  for  the  regulation  of  their  business,  and  among 
them  a  rule  that  passengers  from  Lowell  to  Amherst  and  onward 
should  take  French's  stage  at  Lowell,  and  that  b}-  a  notice  brought 
home  to  the  individual  the  general  responsibility  of  the  defendant,  if  it 
existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit  their 
general  responsibihty  in  this  manner. 

It  has  been  decided  in  New  York  that  stage  coach  proprietors  are 
answerable,  as  common  carriers,  for  the  baggage  of  passengers,  that 
they  cannot  restrict  their  common  law  liability  by  a  general  notice  that 
the  baggage  of  passengers  is  at  the  risk  of  the  owners,  and  that  if  a 
carrier  can  restrict  his  common  law  liability,  it  can  only  be  by  an  ex- 
press contract.  19  Wend.  234,  Hollister  v.  Nowlen.  And  this  prin- 
ciple was  applied,  and  the  proprietors  held  liable  for  the  loss  of  a  trunk, 
in  a  case  where  the  passenger  stopped  at  a  place  where  the  stages  were 
not  changed,  and  he  permitted  the  stage  to  proceed,  without  any  in- 
quiry for  his  baggage.  19  Wend.  251,  Cole  v.  Goodwin.  However 
this  may  be,  as  there  was  room  in  the  defendant's  coach,  he  could  not 
have  objected  to  take  a  passenger  from  Nashua,  who  applied  there, 
merely  because  he  belonged  to  some  other  town.  That  would  furnish 
no  sufficient  reason,  and  no  rule  or  notice  to  that  effect  could  Umit  his 
duty.  And  there  is  as  little  legal  reason  to  justify  a  refusal  to  take  a 
passenger  from  Nashua,  merely  because  he  came  to  that  place  in  a  par- 
ticular conveyance.  The  defendant  might  well  have  desired  that  pas- 
sengers at  Lowell  should  take  French's  line,  because  it  connected  with 
his.  But  if  he  had  himself  been  the  proprietor  of  the  stages  from 
Lowell  to  Nashua  he  could  have  had  no  right  to  refuse  to  take  a  pas- 
senger from  Nashua,  merely  because  he  did  not  see  fit  to  come  to  that 
place  in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plaintiff 
came  to  Nashua  from  one  town  or  another,  or  bj'  one  conveyance  or 
another.  That  the  plaintiff  proposed  to  travel  onward  from  that  place 
could  not  injuriously  affect  the  defendant's  business  ;  nor  was  the  plaintiff 
to  be  punished  because  he  had  come  to  Nashua  in  a  particular  manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to  give 
a  preference  to  the  passengers  who  came  in  French's  stage ;  and  as 
they  were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was  bound 
so  to  do,  without  an  agreement.  If,  after  they  were  accommodated, 
there  was  still  room,  he  was  bound  to  carry  the  plaintiff,  without  in- 
quiring in  what  line  he  came  to  Nashua. 

Judgment  for  the  plaintif. 


110  PEAESON   V.    DUANE. 

PEARSON   V.   DUANE. 
Supreme  Court  of  the  United  States,  1867. 

[4  Wall.  605.] 

In  the  month  of  June,  1856,  the  steamship  Stevens,  a  common  carrier 
of  passengers,  of  which  Pearson  was  master,  on  her  regular  voj-age 
from  Panama  to  San  Francisco,  arrived  at  the  intermediate  port  of 
Acapulco,  where  Duane  got  on  board,  with  the  intention  of  proceeding 
to  San  Francisco.  He  had,  short)}'  before  this,  been  banished  from  that 
cit}'  by  a  revolutionar}'  yet  powerful  and  organized  body  of  men,  called 
*'The  Vigilance  Committee  of  San  Francisco,"  upon  penalty  of  death 
in  case  of  return.  Pearson  ascertained  that  Duane  had  been  expelled 
from  California,  and  put  Duane  aboard  the  steamer  Sonora.  Duane 
filed  a  libel  in  admiralty  for  damages.^ 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

This  case  is  interesting  because  of  certain  novel  views  which  this 
court  is  asked   to  sustain. 

Two  questions  arise  in  it :  1st,  was  the  conduct  of  Pearson  justifi- 
able? 2d,  if  not,  what  should  be  the  proper  measure  of  damages?  It 
is  contended,  as  the  life  of  Duane  was  in  imminent  peril,  in  case  of  his 
return  to  San  Francisco,  that  Pearson  was  justified,  in  order  to  save  it, 
in  excluding  him  from  his  boat,  notwithstanding  Duane  was  willing  to 
take  his  chances  of  being  hanged  by  the  Vigilance  Committee. 

Such  a  motive  is  certainly  commendable  for  its  humanity,  and  goes 
very  far  to  excuse  the  transaction,  but  does  not  justify  it.  Common 
carriers  of  passengers,  like  the  steamship  Stevens,  are  obliged  to  carry 
all  persons  who  apply  for  passage,  if  the  accommodations  are  sufficient, 
unless  there  is  a  proper  excuse  for  refusal.^ 

If  there  are  reasonable  objections  to  a  proposed  passenger,  the 
carrier  is  not  required  to  take  him.  In  this  case,  Duane  could  have 
been  well  refused  a  passage  when  he  first  came  on  board  the  boat, 
if  the  circumstances  of  his  banishment  would,  in  the  opinion  of  the 
master,  have  tended  to  promote  further  difficulty,  should  he  be  returned 
to  a  city  where  lawless  violence  was  supreme. 

But  this  refusal  should  have  preceded  the  sailing  of  the  ship.  After 
the  ship  had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  char- 
acter of  a  passenger,  or  to  his  peculiar  position,  provided  he  violated 
no  inflexible  rule  of  the  boat  in  getting  on  board.  This  was  not  done, 
and  the  defence  that  Duane  was  a  "stowaway,"  and  therefore  subject 
to  expulsion  at  any  time,  is  a  mere  pretence,  for  the  evidence  is  clear 
that  he  made  no  attempt  to  secrete  himself  until  advised  of  his  intended 
transfer  to  the  Sonora.  Although  a  railroad  or  steamboat  company 
can  properly  refuse  to  transport  a  drunken  or  insane  man,  or  one  whose 

1  The  statement  of  facts  has  been  condensed.  —  Ed. 

2  Jencks  v.  Colemau,  2  Sumner,  221 ;  Beuuett  v.  Dutton,  10  New  Hampshire,  486. 


CHICAGO    &    NORTHWESTERN    RAILWAY   V.   WILLIAMS.  Ill 

character  is  bad,  they  cannot  expel  him,  after  having  admitted  him  as 
a  passenger,  and  received  his  fare,  unless  he  misbehaves  dining  the 
journe}.^  Duane  conducted  himself  properl}-  on  the  boat  until  his  ex- 
pulsion was  determined,  and  when  his  fare  was  tendered  to  the  purser, 
he  was  entitled  to  the  same  rights  as  other  passengers.  The  refusal  to 
carry  him  was  contrary  to  law,  although  the  reason  for  it  was  a  humane 
one.  The  apprehended  danger  mitigates  the  act,  but  affords  no  legal 
justification  for  it. 

But  the  sum  of  four  thousand  dollars  awarded  as  damages  in  this 
case  is  excessive,  bearing  no  proportion  to  the  injury  received.^  .  .  . 
We  are  of  opinion  that  the  damages  should  be  reduced  to  $50. 

It  is  ordered  that  this  cause  be  remitted  to  the  Circuit  Court  for  the 
District  of  California,  with  directions  to  enter  a  decree  in  favor  of  the 
appellee  for  fifty  dollars.  It  is  further  ordered  that  each  party  pay  his 
own  costs  in  this  court.  Order  accordingly. 


CHICAGO    &   NORTHWESTERN   RAILWAY  v.   WILLIAMS. 
Supreme  Court  of  Illinois,  1870. 

[55  ///.  185.] 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court. 

There  is  but  one  question  of  any  considerable  importance  presented 
by  the  record  in  this  case. 

It  is  simplv  whether  a  railroad  compan}',  which,  by  our  statute  and 
the  common  law,  is  a  common  carrier  of  passengers,  in  a  case  where 
the  company,  by  their  rules  and  regulations,  have  designated  a  certain 
car  in  their  passenger  train  for  the  exclusive  use  of  ladies,  and  gentle- 
men accompanied  by  ladies,  can  exclude  from  the  privileges  of  such  car 
a  colored  woman  holding  a  first-class  ticket,  for  no  other  reason  except 
her  color. 

The  evidence  in  the  case  establishes  these  facts  —  that,  as  was  the 
custom  on  appellants'  road,  they  had  set  apart  in  their  passenger  trains 
a  car  for  the  exclusive  use  of  ladies,  and  gentlemen  accompanied  by 
ladies,  and  that  such  a  car,  called  the  "•  ladies'  car,"  was  attached  to 
the  train  in  question.  The  appellee  resided  at  Rockford,  and  being  de- 
sirous of  going  from  that  station  to  Belvidere,  on  the  road  of  appellants, 
for  that  purpose  purchased  of  the  agent  of  the  appellants  a  ticket, 
which  entitled  the  holder  to  a  seat  in  a  first-class  car  on  their  road. 
On  the  arrival  of  the  train  at  the  Rockford  station  the  appellee  ofl!'ered 
and  endeavored  to  enter  the  ladies'  car,  but  was  refused  permission  so 
to  do,  and  was  directed  to  go  forward  to  the  car  set  apart  for  and  occu- 
pied mostly  by  men.     On  the  appellee  persisting  on  entering  the  ladies' 

1  Coppin  V.  Rraithwaite,  8  Jurist,  875 ;  Prendergast  v.  Compton,  8  Carrington  and 
Payne,  462. 

2  The  discussion  of  this  point  is  omitted.  —  Ed. 


112  CHICAGO   &   NORTHWESTERN   RAILWAY   V.   WILLIAMS. 

car,  force  enough  was  used  by  the  brakeman  to  prevent  her.  At  the 
time  she  attempted  to  obtain  a  seat  in  that  car  on  appellants'  train 
there  were  vacant  and  unoccupied  seats  in  it,  for  one  of  the  female 
witnesses  states  that  she,  with  two  other  ladies,  a  few  moments  after- 
wards, entered  the  same  car  at  that  station  and  found  two  vacant  seats, 
and  occupied  the  same.  No  objection  whatever  was  made,  nor  is  it  in- 
sisted an}'  other  existed,  to  appellee  taking  a  seat  in  the  ladies'  car 
except  her  color.  The  appellee  was  clad  in  plain  and  decent  apparel, 
and  it  is  not  suggested,  in  the  evidence  or  otherwise,  that  she  was  not 
a  woman  of  good  character  and  proper  behavior. 

It  does  not  appear  that  the  company-  had  ever  set  apart  a  car  for  the 
exclusive  use,  or  provided  any  separate  seats  for  the  use  of  colored 
persons  who  might  desire  to  pass  over  their  line  of  road.  The  evidence 
discloses  that  colored  women  sometimes  rode  in  the  ladies'  car,  and 
sometimes  in  the  other  car,  and  there  was,  in  fact,  no  rule  or  regula- 
tion of  the  company  in  regard  to  colored  passengers. 

The  case  turns  somewhat  on  what  are  reasonable  rules,  and  the  power 
of  railroad  companies  to  establish  and  enforce  them. 

It  is  the  undoubted  right  of  railroad  companies  to  make  all  reason- 
able rules  and  regulations  for  the  safety-  and  comfort  of  passengers 
travelling  on  their  lines  of  road.  It  is  not  only  their  right,  but  it  is  their 
duty  to  make  such  rules  and  regulations.  It  is  alike  the  interest  of 
the  companies  and  the  public  that  such  rules  should  be  established  and 
enforced,  and  ample  authorit}-  is  conferred  by  law  on  the  agents  and 
servants  of  the  companies  to  enforce  all  reasonable  regulations  made  for 
the  safety  and  convenience  of  passengers. 

It  was  held,  in  the  case  of  the  111.  Cent.  R.  R.  Co.  v.  Whitteraore, 
43  111.  423,  that  for  a  non-compliance  with  a  reasonable  rule  of  the  com- 
pan}',  a  party  might  be  expelled  from  a  train  at  a  point  other  than  a 
regular  station. 

If  a  person  on  a  train  becomes  disorderly,  profane,  or  dangerous  and 
offensive  in  his  conduct,  it  is  the  duty  of  the  conductor  to  expel  such 
guilty  party,  or  at  least  to  assign  him  to  a  car  where  he  will  not  en- 
danger or  annoy  the  other  passengers.  Whatever  rules  tend  to  the 
comfort,  order,  and  safety  of  the  passengers,  the  company  are  fully 
authorized  to  make,  and  are  amply  empowered  to  enforce  compliance 
therewith. 

But  such  rules  and  regulations  must  always  be  reasonable  and  uni- 
form in  respect  to  persons. 

A  railroad  company  cannot  capriciously  discriminate  between  pas- 
sengers on  account  of  their  nativity,  color,  race,  social  position,  or  their 
political  or  religious  beliefs.  Whatever  discriminations  are  made  must 
be  on  some  principle,  or  for  some  reason,  that  the  law  recognizes  as 
just  and  equitable,  and  founded  in  good  public  policy.  What  are 
reasonable  rules  is  a  question  of  law,  and  is  for  the  court  to  de'termine, 
under  all  the  circumstances  in  each  particular  case. 

In  the  present  instance  the  rule  that  set  apart  a  car  for  the  exclusive 


CHICAGO   &   NORTHWESTERN   RAILWAY   V.   WILLIAMS.  113 

use  of  ladies,  and  gentlemen  accompanied  b}'  ladies,  is  a  reasonable 
one,  and  the  power  of  the  company  to  establish  it  has  never  been 
doubted. 

If  the  appellee  is  to  be  denied  the  privilege  of  the  "  ladies'  car,"  for 
which  she  was  willing  to  pay,  and  had  paid,  full  compensation  to  the 
compan}-,  a  privilege  which  is  accorded  alike  to  all  women,  whether 
thev  are  rich  or  poor,  it  must  be  on  some  principle  or  under  some  rule 
of  the  compan}'  that  the  law  would  recognize  as  reasonable  and  just. 
If  she  was  denied  that  privilege  by  the  mere  caprice  of  the  brakeman 
and  conductor,  and  under  no  reasonable  rule  of  the  company,  or  what 
is  still  worse,  as  the  evidence  would  indicate,  through  mere  wantonness 
on  the  part  of  the  brakeman,  then  it  was  unreasonable,  and  therefore 
unlawful.  It  is  not  pretended  that  there  was  any  rule  that  excluded 
her,  or  that  the  managing  officers  of  the  company  had  ever  given  any 
directions  to  exclude  colored  persons  from  that  car.  If,  however,  there 
was  such  a  rule,  it  could  not  be  justified  on  the  ground  of  mere  preju- 
dice. Such  a  rule  must  have  for  its  foundation  a  better  and  a  sounder 
reason,  and  one  more  in  consonance  with  the  enlightened  judgment  of 
reasonable  men.  An  unreasonable  rule,  that  affects  the  convenience 
and  comfort  of  passengers,  is  unlawful,  simply  because  it  is  unreason- 
able.    The  State  v.  Overton,  4  Zab.  435. 

In  the  case  of  the  West  Chester  &  Philadelphia  R.  R.  Co.  v.  Miles, 
55  Penn.  209,  it  was  admitted  that  no  one  could  be  excluded  from  a 
carriage  by  a  public  carrier  on  account  of  color,  religious  belief,  politi- 
cal relations,  or  prejudice,  but  it  was  held  not  to  be  an  unreasonable 
regulation  to  seat  passengers  so  as  to  preserve  order  and  decorum  and 
prevent  contacts  and  collisions  arising  from  well-known  repugnances, 
and  therefore  a  rule  that  required  a  colored  woman  to  occupy  a  separate 
seat  in  a  car  furnished  by  the  company,  equally  as  comfortable  and  safe 
as  that  furnished  for  other  passengers,  was  not  an  unreasonable  rule. 

Under  some  circumstances  this  might  not  be  an  unreasonable  rule. 

At  all  events,  public  carriers,  until  they  do  furnish  separate  seats 
equal  in  comfort  and  safety  to  those  furnished  for  other  travellers,  must 
be  held  to  have  no  right  to  discriminate  between  passengers  on  account 
of  color,  race,  or  nativity  alone. 

We  do  not  understand  that  the  appellee  was  bound  to  go  forward  to 
the  car  set  apart  for  and  occupied  mostly  by  men,  when  she  was  directed 
by  the  brakeman.  It  is  a  sufficient  answer  to  say  that  that  car  was  not 
provided  by  any  rule  of  the  company  for  the  use  of  women,  and  that 
another  one  was.  This  fact  was  known  to  the  appellee  at  the  time. 
She  may  have  undertaken  the  journey  alone,  in  view  of  that  very  fact, 
as  women  often  do. 

The  above  views  dispose  of  all  the  objections  taken  to  the  instructions 
given  by  the  court  on  behalf  of  the  appellee,  and  the  refusal  of  the 
court  to  give  those  asked  on  the  part  of  the  appellants,  except  the  one 
■which  tells  the  jury  that  they  may  give  damages  above  the  actual  dam- 
ao-es  sustained,  for  the  delay,  vexation,  and  indignity  to  which  the  ap- 


114  THE   D,   R.   MARTIN. 

pellee  was  exposed  if  she  was  wrongfully  excluded  from  the  car.  If  the 
party  in  such  case  is  confined  to  the  actual  pecuniary  damages  sustained, 
it  would,  most  often,  be  no  compensation  at  all,  above  nominal  dam- 
ages, and  no  salutary  effect  would  be  produced  on  the  wrong  doer  by 
such  a  verdict.  But  we  apprehend  that  if  the  act  is  wrongfully  and 
wantonly  committed,  the  party  may  recover,  in  addition  to  the  actual 
damages,  something  for  the  indignity,  vexation,  and  disgrace  to  which 
the  part}-  has  been  subjected. 

It  is  insisted  that  the  damages  are  excessive,  in  view  of  the  slight 
injur}'  sustained. 

There  is  evidence  from  which  the  jury  could  find  that  the  brakeman 
treated  the  appellee  very  rudely,  and  placed  his  hand  on  her  and  pushed 
her  away  from  the  car.  The  act  was  committed  in  a  public  place,  and 
whatever  disgrace  was  inflicted  on  her  was  in  the  presence  of  strangers 
and  friends.  The  act  was,  in  itself,  wrongful,  and  without  the  shadow 
of  a  reasonable  excuse,  and  the  damages  are  not  too  high.  The  jury 
saw  the  witnesses,  and  heard  their  testimony,  and  with  their  finding 
we  are  full}'  satisfied. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  afirtned. 


THE  D.    R.   MARTIN. 
Circuit  Court  of  the  United  States,  So.  New  York,  1873. 

[II  Blatch.  233.] 

Hunt,  J.  On  the  trial  before  the  District  Judge,  the  libellant,  David 
F.  Barney,  recovered  the  sum  of  Si, 000,  as  his  damages  for  ejecting 
him  from  the  steamboat  D.  R.  Martin,  on  the  morning  of  October  23, 
1871.  On  an  application  subsequently  made  to  him,  the  District  Judge 
reduced  the  recovery  to  the  sum  of  $500.  A  careful  perusal  of  all  the 
testimony  satisfies  me  that  the  libellant  was  pursuing  his  business  as 
an  express  agent  on  board  of  the  boat,  that  he  persisted  in  it  against  the 
remonstrance  of  the  claimant,  and  that  it  was  to  prevent  the  transac- 
tion of  that  business  by  him  on  board  of  the  boat,  that  he  was  ejected 
therefrom  by  the  claimant.  The  steamboat  company  owning  this  vessel 
were  common  carriers  between  Huntington  and  New  York.  They  were 
bound  to  transport  every  passenger  presenting  himself  for  transporta- 
tion, who  was  in  a  fit  condition  to  travel  by  such  conveyance.  They 
were  bound,  also,  to  carry  all  freight  presented  to  them  in  a  reasonable 
time  before  their  hours  of  starting.  The  capacity  of  their  accommoda- 
tion was  the  only  limit  to  their  obligation.  A  public  conveyance  of 
this  character  is  not,  however,  intended  as  a  place  for  the  transaction 
of  the  business  of  the  passengers.  The  suitable  carriage  of  persons  or 
property  is  the  only  duty  of  the  common  carrier.  A  steamboat  com- 
pany, or  a  railroad  company,  is  not  bound  to  furnish  travelling  con- 
veniences for  those  who  wish  to  engage,  on  their  vehicles,  in  the  business 


THE   D.    K.    MARTIN.  115 

of  selling  books,  papers,  or  articles  of  food,  or  in  the  business  of  receiv- 
ing and  distributing  parcels  or  baggage,  nor  to  permit  the  transaction 
of  this  business  in  their  vehicles,  when  it  interferes  with  their  own 
interests.  If  a  profit  ma^'  arise  fi-om  such  business,  the  benefit  of  it 
belongs  to  the  compan}',  and  they  are  entitled  to  the  exclusive  use  of 
tlieir  vehicles  for  such  purposes.  This  seems  to  be  clear  both  upon 
principle  and  authority-.  (Story  on  Bailments,  §  591a/  Jencks  v.  Cole- 
man, 2  Sumner,  221  ;  Burgess  v.  Clements,  4  Maule  &  Sel.,  306 ;  Fell 
V.  Knight,  8  Mee.  &  W.,  269  ;  Commonwealth  u.  Power,  1  Am.  Railway 
Cases,  389.)  These  cases  show  that  the  principle  thus  laid  down  is 
true  as  a  general  rule.  The  case  of  The  N,  J.  Steam  Nav.  Co.  v. 
Merchants'  Bank  (6  How.  344)  shows  that  it  is  especiall}-  applicable 
to  those  seeking  to  do  an  express  business  on  such  conve3'ances.  It  is 
there  held,  in  substance,  that  the  carrier  is  liable  to  the  owner  for  all 
the  goods  shipped  on  a  public  conveyance  b}-  an  express  com  pan}', 
without  regard  to  an}-  contract  to  the  contrar}'  between  the  carrier  and 
the  express  company.  Although  the  carrier  may  have  no  custody  or 
control  of  the  goods,  he  is  liable  to  the  owner  in  case  of  loss,  if  he 
allows  them  to  be  brought  on  board.  It  is  the  simplest  justice  that  he 
should  be  permitted  to  protect  himself  by  preventing  their  being  brought 
on  board  by  those  having  them  in  charge.  This  rule  would  not  exclude 
the  transmission,  as  freight,  of  an}'  goods  or  property  which  the  owners 
or  agents  should  choose  to  place  under  the  care  and  control  of  the 
carrier. 

That  persons  other  than  the  libellants  carried  a  carpet  bag  without 
charge,  or  that  such  bag  occasionally  contained  articles  forwarded  by 
a  neighbor  or  procured  for  a  friend,  does  not  affect  the  carrier's  right. 
The  cases  where  this  was  proved  to  have  been  done  were  rare  and 
exceptional,  and  do  not  appear  to  have  been  known  to  the  carrier,  nor 
does  it  appear  that  any  compensation  was  paid  to  the  agent.  They 
were  neighborly  and  friendly  services,  such  as  people  in  the  country 
are  accustomed  to  render  for  each  other.  But,  if  the  service  and  the 
business  had  been  precisely  like  that  of  the  libellant  the  rule  would 
have  been  the  same.  The  rights  of  the  carrier  in  respect  to  A.  are  not 
gone  or  impaired,  for  the  reason  that  he  waives  his  rights  in  respect 
to  B.,  especially  if  A.  be  notified  that  the  rights  are  insisted  upon  as  to 
him.  If  Mr.  Prime  was  permitted  to  carry  a  bag  without  charge  on 
the  claimant's  boat,  or  to  do  a  limited  express  business  thereon,  this 
gave  the  libellant  no  right  to  do  such  business,  when  notified  by  the 
carrier  that  he  must  refrain  from  it.  A  carrier,  like  all  others,  may 
bestow  favor  where  he  chooses.  Rights,  not  favors,  are  the  subject  of 
demand  by  all  parties  indiscriminately.  The  incidental  benefit  arising 
from  the  transaction  of  such  business  as  may  be  done  on  board  of  a 
boat  or  on  a  car,  belongs  to  the  carrier,  and  he  can  allow  the  privilege 
to  one  and  exclude  from  it  another,  at  his  pleasure.  A  steamboat 
company  or  a  railroad  company,  may  well  allow  an  individual  to  open 
a  restaurant  or  a  bar  on  their  conveyance,  or  to  do  the  business  of  boot 


116  BROWN   V.   MEMPHIS   &   C.   RAILROAD. 

blacking,  or  of  peddling  books  and  papers.  This  individual  is  under 
their  control,  subject  to  their  regulation,  and  the  business  interferes  in 
no  respect  with  the  orderly-  management  of  the  vehicle.  But  if  every 
one  that  thinks  fit  can  enter  upon  the  performance  of  these  duties,  the 
control  of  the  vehicle  and  its  good  management  would  soon  be  at  an 
end.  The  cars  or  boats  are  those  of  the  carrier,  and,  I  think,  exclu- 
sivel}-  his,  for  tiiis  purpose.  The  sale  or  leasing  of  these  rights  to  indi- 
viduals, and  the  exclusion  of  others  therefrom,  come  under  the  head  of 
reasonable  regulations,  which  the  courts  are  bound  to  enforce.  The 
right  of  transportation,  which  belongs  to  all  who  desire  it,  does  not 
carr}'  with  it  a  right  of  traffic  or  of  business. 

It  is  insisted  that  the  libellant  could  not  legall}-  be  ejected  from  the 
boat  for  any  offence,  or  violation  of  rules,  committed  on  a  former  occa- 
sion. It  is  insisted,  also,  that,  having  purchased  a  ticket  from  the 
agent  of  the  companv,  his  right  to  a  passage  was  perfect.  Neither  of 
these  propositions  is  correct.  In  Commonwealth  v.  Power,  (7  Met.  596,) 
the  passenger  had  actually  purchased  his  ticket,  and  the  Chief  Justice 
sa3's  :  "  If  he.  Hall,  gave  no  notice  of  his  intention  to  enter  the  car  as 
a  passenger,  and  of  his  right  to  do  so,  and  if  Power  believed  that  his 
intention  was  to  violate  a  reasonable  subsisting  regulation,  then  he  and 
his  assistants  were  justified  in  forcibl}-  removing  him  from  the  depot." 
In  Pearson  v.  Duane,  (4  Wallace,  605,)  Mr.  Justice  Davis,  in  giving  the 
opinion  of  the  court,  held  the  expulsion  of  Duane  to  have  been  illegal, 
because  it  was  dela3ed  until  the  vessel  had  sailed.  "  But  this  refusal," 
he  says,  "should  have  preceded  the  sailing  of  the  ship.  After  the  ship 
had  got  to  sea,  it  was  too  late  to  take  exceptions  to  the  character  of  a 
passenger,  or  to  his  peculiar  position,  provided  he  violated  no  inflexible 
rule  of  the  boat  in  getting  on  board."  The  libellant,  in  this  case,  re- 
fused to  give  any  intimation  that  he  would  abandon  his  trade  on  board 
the  vessel.  The  steamboat  company,  it  is  evident,  were  quite  willing 
to  carr}-  him  and  his  baggage,  and  objected  only  to  his  persistent  at- 
tempts to  continue  his  trafl3c  on  their  boat.  He  insisted  that  he  had 
the  right  to  pursue  it,  and  the  company  resorted  to  the  onl^'  means  in 
their  power  to  compel  its  abandonment,  to  wit,  his  removal  from  the 
boat.  This  was  done  with  no  unnecessary  force,  and  was  accompanied 
by  no  indignit3'.  In  my  opinion,  the  removal  was  justified,  and  the 
decree  must  be  reversed.^ 


BROWN  V.  MEMPHIS    &   C.   RAILROAD. 
Circuit  Court  of  the  United  States,  W.  Tenk.,  1880. 

[5  Fed.  499.] 

This  was  a  common-law  action  for  the  wrongful  exclusion  of  the 
plaintiff,  a  colored  woman,  from  the  ladies'  car  of  the  defendant's  train, 
upon  her  refusal  to  take  a  seat  in  the  smoking-car.     At  the  time  of  her 

1  Ace.  Barney  i-.  Oyster  Bay  &  H.  S.  B.  Co.,  67  N.  Y.  301.  — Ed. 


BROWN    V.   MEMPHIS   &   C.    KAILROAD.  117 

exclusion  the  plaintiff  held  a  first-class  ticket  over  the  defendant's  road 
from  Corinth,  Mississippi,  to  Memphis,  Tennessee,  and  her  behavior 
while  in  the  car  was  lady-lilce  and  inoffensive.^ 

The  defendant  pleaded  that  the  plaintiff  was  a  notorious  and  public 
courtesan,  addicted  to  the  use  of  profane  language  and  offensive  habits 
of  conduct  in  public  places  ;  that  the  ladies'  car  was  set  apart  exclu- 
sively for  the  use  of  genteel  ladies  of  good  character  and  modest  de- 
portment, from  which  the  plaintiff  was  rightfVill}'  excluded  because  of 
her  bad  character. 

Hammond,  District  Judge,  charged  the  jury  that  the  same  principles 
of  law  were  to  be  applied  to  women  as  men  in  determining  whether  the 
exclusion  was  lawful  or  not ;  that  the  social  penalties  of  exclusion  of 
unchaste  women  from  hotels,  theatres,  and  other  public  places  could 
not  be  imported  into  the  law  of  common  carriers  ;  that  they  had  a  right 
to  travel  in  the  streets  and  on  the  public  highways,  and  other  people 
who  travel  must  expect  to  meet  them  in  such  places  ;  and,  as  long  as 
their  conduct  was  unobjectionable  while  in  such  places,  they  could  not 
be  excluded.  The  carrier  is  bound  to  carry  good,  bad,  and  indifferent, 
and  has  nothing  to  do  with  the  morals  of  his  passengers,  if  their  be- 
havior be  proper  while  travelling.  Neither  can  the  carrier  use  the 
character  for  chastity  of  his  female  passengers  as  a  basis  of  classifica- 
tion, so  that  he  may  put  all  chaste  women,  or  women  who  iiave  the 
reputation  of  being  chaste,  into  one  car,  and  those  known  or  reputed 
to  be  unchaste  in  another  car.  Such  a  regulation  would  be  contrary  to 
public  policy,  and  unreasonable.  It  would  put  every  woman  purchasing 
a  railroad  ticket  on  trial  for  her  virtue  before  the  conductor  as  her  judge, 
and,  in  case  of  mistake,  would  lead  to  breaches  of  the  peace.  It  would 
practically  exclude  all  sensible  and  sensitive  women  from  travelling  at 
all,  no  matter  how  virtuous,  for  fear  they  might  be  put  into  or  uncon- 
sciously occupy  tlie  wrong  car.'^ 

Tiie  police  power  of  the  carrier  is  sufficient  protection  to  other  pas- 
sengers, and  he  can  remove  all  persons,  men  or  women,  whose  conduct 
at  the  time  is  annoying,  or  whose  reputation  for  misbehavior  and  in- 
decent demeanor  in  public  is  so  notoriously  bad  that  it  furnishes  a  rea- 
sonable ground  to  believe  that  the  person  will  be  offensive  or  annoying 
to  others  travelling  in  the  same  car ;  and  this  is  as  far  as  the  carrier 
has  any  right  to  go.  He  can  no  more  classify  women  according  to 
their  reputation  for  chastity,  or  want  of  it,  than  he  can  so  grade  the 
men.  Verdict  for  the  plaintiff . 

1  Part  of  the  statement  of  facts  and  part  of  the  charge  are  omitted.  —  Ed. 
»  See  Brown  v.  R.  R.,  4  Fed.  37.  — Ed. 


118  STATE   V.   STEELE. 


STATP:   v.    STEELE. 
Supreme  Court  of  North  Carolina,  1890. 

[106  N.  C.  766;  11  5.  £.  478.] 

This  was  a  criminal  action,  tried  before  Charles  A.  Moore, 
Judge,  and  a  jury,  at  the  October  term  of  the  Criminal  Court  of 
Buncombe  County,  on  an  appeal  from  a  court  of  a  justice  of  the  peace 
of  said  county.^  .   .  . 

The  court  charged  the  jury  as  follows:  — 

"If  you  shall  find  from  the  evidence  that  others  engaged  in  the 
same  business  as  the  prosecutor  were  permitted  by  the  defendant  to 
go  to  the  Battery  Park  Hotel  for  the  same  purpose  for  which  the 
prosecutor  went  there,  —  that  is,  to  secure  and  transact  business  for 
his  employer's  livery  stable,  — then  the  prosecutor  had  also  the  right 
to  go  there  for  that  purpose  at  reasonable  times,  and  to  remain  there 
a  reasonable  length  of  time  for  the  transaction  of  such  business ;  and 
it  would  not  matter  that  the  rules  of  the  hotel  forbade  his  entering 
the  premises  of  the  hotel  for  that  purpose,  or  that  he  had  been  pre- 
viously forbidden,  in  writing,  to  come  upon  the  premises  of  the  hotel, 
nor  would  it  matter  that  the  defendant  had  designated  a  place  at  the 
back  of  the  hotel  where  livery-men  could  transact  their  livery  business 
with  the  guests  of  the  hotel,  through  the  servants  and  employes  of  the 
hotel,  even  though  the  prosecutor  knew  of  such  place  being  so  desig- 
nated. He  would  not,  however,  have  the  right  to  go  there  at  all 
times,  nor  would  he  have  the  right  to  remain  there  all  the  time,  or  an 
unreasonable  length  of  time,  for  the  transaction  of  such  business, 
against  the  will  of  the  owner  or  manager."  .  .   . 

Avery,  J.  It  was  formerly  held  by  the  courts  of  England  that 
where  an  innkeeper  allured  travellers  to  his  tavern  by  holding 
himself  out  to  the  public  as  ready  to  entertain  them,  and  then  refused 
to  receive  them  into  his  house  when  he  had  room  to  accommodate 
them,  and  after  they  had  tendered  the  money  to  pay  their  bills,  he  was 
liable  to  indictment.  But  this  doctrine,  says  Bishop  (Volume  I. 
§  532,  Crim.  Law),  "has  little  practical  effect  at  this  time,  being 
rather  a  relic  of  the  past  than  a  living  thing  of  the  present."  Rex  v. 
Luellin,  12  Mod.  445.  In  a  dictum  in  State  v.  Matthews,  2  Dev.  & 
B.  424,  this  old  principle  was  stated  with  some  qualification,  viz., 
that  "all  and  every  one  of  the  citizens  have  a  right  to  demand  enter- 
tainment of  a  public  innkeeper,  if  they  behave  themselves,  and  are 
willing  and  able  to  pay  for  their  fare;  and,  as  all  have  a  right  to  go 
there  and  be  entertained,  they  are  not  to  be  annoyed  there  by  dis- 
order, and  if  the  innkeeper  permits  it  he  is  subject  to  be  indicted 
as  for  a  nuisance."  Rommel  v.  Schanbacker,  120  Pa.  579.  The 
duty  and  legal  obligation  resting  upon  the  landlord  is  to  admit  only 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


STATE   V.    STEELE.  119 

such  guests  as  demand  accommodation,  and  he  has  the  right  to  refuse 
to  allow  even  travellers  who  are  manifestly  so  filthj-,  drunken,  or 
profane  as  to  prove  disagreeable  to  others  who  are  inmates,  and 
thereby  to  injure  the  reputation  of  his  house,  to  enter  his  inn  for  food 
or  shelter,  though  they  may  be  abundantly  able  to  pay  his  charges. 
2  Whart.  Crim.  Law,  §  1587;  Eeg.  v.  Rymer,  13  Cox,  Crim.  Cas. 
378.  The  right  to  demand  admission  to  the  hotel  is  confined  to  per- 
sons who  sustain  the  relation  of  guests,  and  does  not  extend  to  every 
individual  who  invades  the  premises,  not  in  response  to  the  invitation 
given  by  the  keeper  to  the  public,  but  in  order  to  gratify  his  curiosity 
by  seeing,  or  his  cupidity  by  trading  with,  patrons  who  are  under  the 
protection  of  the  proprietor.  1  Whart  Crim.  Law,  §  625.  The  land- 
lord is  not  only  under  no  obligation  to  admit,  but  he  has  the  power  to 
prohibit  the  entrance  of,  any  person  or  class  of  persons  into  his  house 
for  the  purpose  of  plying  his  guests  with  solicitations  for  patronage 
in  their  business ;  and  especially  is  this  true  when  the  very  nature  of 
the  business  is  such  that  human  experience  would  lead  us  to  expect 
the  competing  "drummers,"  in  the  heat  of  excitement,  not  only  to 
trouble  the  guests  by  earnest  and  continued  approaches,  but  by  their 
noise,  or  even  strife.  The  guest  has  a  positive  right  to  demand  of  the 
host  such  protection  as  will  exempt  him  from  annoyance  by  such 
persons  as  intrude  upon  him  without  invitation  and  without  welcome, 
and  subject  him  to  torture  by  a  display  of  their  wares  or  books,  or  a 
recommendation  of  their  nostrums  or  business.  That  learned  and 
accomplished  jurist.  Chief  Justice  Shaw,  delivering  the  opinion  in 
Com.  V.  Power,  7  Met.  600,  said:  "An  owner  of  a  steamboat  or  rail- 
I'oad,  in  this  respect,  is  in  a  condition  somewhat  similar  to  that  of  an 
innkeeper,  whose  premises  are  open  to  all  guests,  yet  he  is  not  only 
empowered,  but  he  is  bound,  so  to  regulate  his  house  as  well  with 
regard  to  the  peace  and  comfort  of  his  guests,  who  there  seek  repose, 
as  to  the  peace  and  quiet  of  the  vicinity,  and  to  repress  and  prohibit 
all  disorderly  conduct  therein,  and  of  course  he  has  a  right  and  is 
bound  to  exclude  from  his  premises  all  disorderly  persons,  and  all 
persons  not  conforming  to  regulations  necessary  and  proper  to  secure 
such  quiet  and  good  order."  This  principle  was  stated  as  an  estab- 
lished one,  and  used  by  the  court  as  an  argument  to  sustain  by 
analogy  its  ruling  announced  in  a  subsequent  portion  of  the  opinion, 
that  a  railroad  company  had  a  right  by  its  regulations  to  exclude  from 
its  depot  and  cars,  at  any  station,  persons  who  visited  them  for  the 
purpose  of  soliciting  passengers  to  stop  at  particular  hotels;  and 
one  of  the  reasons  given  for  holding  the  regulation  reasonable  was 
that,  where  the  agent  urged  the  claims  of  their  respective  hotels  "with 
earnestness  and  importunity,  it  was  an  annoyance  to  passengers." 
The  doctrine  is  there  laid  down,  too,  that  persons  other  than  passen- 
gers j9rma/acie  have  the  right  to  enter  the  depot  of  a  railroad  company, 
as  others  besides  guests  may  go  into  hotels,  without  making  themselves 
trespassers,  because  in  both  instances  there  is  an  implied  license  given 


120  STATE   V.    STEELE. 

to  the  public  to  enter.  But  such  licenses  in  their  nature  are  revocable, 
except  in  the  one  case  as  to  passengers,  and  in  the  other  as  to  guests, 
who  have  the  right  to  enter  the  train,  ticket-office,  or  hotel,  as  the 
case  may  be,  if  they  are  sober,  orderly,  and  able  to  pay  for  transpor- 
tation or  fare.  The  court  went  further  in  that  case,  and  held  that, 
in  enforcing  the  reasonable  regulation  against  "drummers"  for  hotels 
at  the  depot,  the  servants  of  the  railway  company  were  not  guilty  of 
an  assault  for  expelling  by  force,  not  excessive,  a  person  who  had 
repeatedly  violated  the  regulation  by  going  upon  the  platform  and 
soliciting  for  a  hotel,  though  on  the  particular  occasion  when  he  was 
ejected  from  it  he  had  a  ticket,  and  intended  to  take  the  train  des- 
tined for  another  town,  but  failed  to  disclose  to  such  servants  the  fact 
that  he  entered  for  "another  purpose,  when  it  was  in  his  power  to 
do  so." 

Were  we  to  follow  the  analogy  to  which  the  principle  laid  down  in 
that  case  would  lead,  an  innkeeper  could  not  only  make  and  enforce  a 
regulation  forbidding  persons  to  come  on  his  premises  for  the  purpose 
of  soliciting  his  guests  to  patronize  the  livery  stables  that  they  might 
represent,  but  he  might,  in  enforcing  the  rule  against  one  who  had 
previously  violated  it  after  notice  that  he  should  not  do  so,  put  such 
person  off  his  premises,  without  excessive  force,  though  at  the  partic- 
ular time  the  person  had  entered  with  the  bona  fide  intent  to  become  a 
guest  at  the  hotel,  but  failed  to  announce  his  purpose;  or,  under  the 
same  principle,  he  might  expel  by  force  one  who  becomes  a  guest, 
and  takes  advantage  of  his  situation  to  subject  other  inmates  of  the 
house  to  the  annoyance  of  "drumming"  for  such  establislmients.  The 
same  distinction  is  drawn  between  guests  and  others  who  enter  an 
hotel  intent  on  business  or  pleasure  by  the  courts  of  Pennsylvania. 
In  Com.  V.  Mitchell,  1  Phila.  63,  and  Com.  v.  Mitchel,  2  Pars. 
Eq.  Cas.  431,  it  was  held  that  an  innkeeper  is  bound  to  receive  and 
furnish  food  and  lodging  for  all  who  enter  his  hotel  as  guests,  and 
tender  him  a  reasonable  price  for  such  accommodation;  but  "if  an 
individual  [other  than  a  guest]  has  entered  a  public  inn,  and  his  pres- 
ence is  disagreeable  to  the  proprietor  or  his  guests,  he  has  a  right  to 
request  the  person  to  depart,  and,  if  he  refuses,  the  innkeeper  has  the 
right  to  lay  his  hands  gently  upon  him,  and  lead  him  out,  and,  if 
resistance  is  made,  to  employ  sufficient  force  to  put  him  out,"  with- 
out incurring  liability  to  indictment  "for  assault  and  battery,"  .   .   . 

[The  learned  judge  here  stated  and  commented  upon  the  cases  of 
Jencks  v.  Coleman,  2  Sum.  224;  Barney  v.  Steam-Boat  Co.,  67  N.  Y. 
302;  Harris  v.  Stevens,  31  Vt.  79;  Old  Colony  R.  R.  v.  Tripp,  147 
Mass.  35.  J 

Upon  a  review  of  all  the  authorities  accessible  to  us,  and  upon  the 
application  of  well-established  principles  of  law  to  the  admitted  facts 
of  this  particular  case,  we  are  constrained  to  conclude  that  there  was 
error  in  tlie  charge  given  by  the  court  to  the  jury,  because: 

1.    Guests  of  an  hotel,  and  travellers  or  other  persons  entering  it 


STATE   1).    STEELE.  121 

with  the  bona  fide  intent  of  becoming  guests,  cannot  be  lawfully 
prevented  from  going  in  or  put  out  by  force,  after  entrance,  provided 
they  are  able  to  pay  the  charges  and  tender  the  money  necessary  for 
that  purpose,  if  requested  by  the  landlord,  unless  they  be  persons  of 
bad  or  suspicious  character,  or  of  vulgar  habits,  or  so  objectionable 
to  the  patrons  of  the  house,  on  account  of  the  race  to  which  they  be- 
long, that  it  would  injure  the  business  to  admit  them  to  all  portions 
of  the  house,  or  unless  they  attempt  to  take  advantage  of  the  freedom 
of  the  hotel  to  injure  the  landlord's  chances  of  profit  derived  either 
from  his  inn  or  any  other  business  incidental  to  or  connected  with  its 
management,  and  constituting  a  part  of  the  provision  for  the  wants 
or  pleasure  of  his  patrons.  Jencks  v.  Coleman,  supra  j  Com.  v. 
Mitchell,  supra;  Com.  v.  Power,  supra;  Pinkerton  v.  Woodward,  91 
Amer.  Dec.  660;  Barney  v.  Steam-Boat  Co.,  suj^ra ;  1  Whart.  Crim. 
Law,  §  621;  Ang.  Carr.  §§  525,  529,  530;  Britton  v.  Railroad  Co.,  88 
N.  C.  536. 

2.  When  persons  unobjectionable  on  account  of  character  or  race 
enter  an  hotel,  not  as  guests,  but  intent  on  pleasure  or  profit,  to  be 
derived  from  intercourse  with  its  inmates,  they  are  there,  not  of 
right,  but  under  an  implied  license  that  the  landlord  may  revoke  at 
any  time;  because,  barring  the  limitation  imposed  by  holding  out 
inducements  to  the  public  to  seek  accommodation  at  his  inn,  the 
proprietor  occupies  it  as  his  dwelling-house,  from  which  he  may  expel 
all  who  have  not  acquired  rights,  growing  out  of  the  relation  of  guest, 
and  must  drive  out  all  who,  by  their  bad  conduct,  create  a  nuisance 
and  prove  an  annoyance  to  his  patrons.  Harris  v,  Stevens,  31  Vt. 
79 ;  1  Whart.  Crim.  Law,  §  625. 

3.  The  regulation,  if  made  by  any  innkeeper,  that  the  proprietors 
of  livery  stables,  and  their  agents  or  servants,  shall  not  be  allowed 
to  enter  his  hotel  for  the  purpose  of  soliciting  patronage  for  their 
business  from  his  guests,  is  a  reasonable  one,  and,  after  notice  to 
desist,  a  person  violating  it  may  be  lawfully  expelled  from  his  house, 
if  excessive  force  be  not  used  in  ejecting  him.  Com.  v.  Power, 
supra ;  Harris  v.  Stevens,  supra.  See,  also,  Griswold  v.  Webb,  16 
R.  I.  649 ;  Railroad  Co.  v.  Tripp,  supra. 

4.  An  innkeeper  has  unquestionably  the  right  to  establish  a  news- 
stand or  a  barber-shop  in  his  hotel,  and  to  exclude  persons  who  come 
for  the  purpose  of  vending  newspapers  or  books,  or  of  soliciting 
employment  as  barbers;  and,  in  order  to  render  his  business  more 
lucrative,  he  may  establish  a  laundry  or  a  livery  stable  in  connection 
with  his  hotel,  or  contract  with  the  proprietor  of  a  livery  stable  in  the 
vicinity  to  secure  for  the  latter,  as  far  as  he  legitimately  can,  the 
patronage  of  his  guests  in  that  line  for  a  per  centum  of  the  proceeds 
or  profits  derived  by  such  owner  of  vehicles  and  horses  from  dealing 
with  the  patrons  of  the  public  house.  After  concluding  such  a  con- 
tract, the  innkeeper  may  make,  and  after  personal  notice  to  violators, 
enforce,  a  rule  excluding  from  his  hotel  the  agents  and  representa- 


122  STATE   V.   STEELE. 

tives  of  other  livery  stables  who  enter  to  solicit  the  patronage  of  his 
guests;  and  where  one  has  persisted  in  visiting  the  hotel  for  that 
purpose,  after  notice  to  desist,  the  proprietor  may  use  sutflcient  force 
to  expel  him  if  he  refuse  to  leave  when  requested,  and  may  eject  him, 
even  though  on  a  particular  occasion  he  may  have  entered  for  a  lawful 
purpose,  if  he  does  not  disclose  his  true  intent  when  requested  to 
leave,  or  whatever  may  have  been  his  purpose  in  entering,  if  he  in 
fact  has  engaged  in  soliciting  the  patronage  of  the  guests.  Barney 
V.  Steam-Boat  Co.,  supra;  Jencks  o.  Coleman,  and  Harris  ?'.  Stevens, 
supra  ;  Ang.  &  A.  Corp.  §  530. 

5.  The  broad  rule  laid  down  by  Wharton  (1  Crim.  Law,  §  625)  is 
that  "the  pi'oprietor  of  a  public  inn  has  a  right  to  request  a  person 
who  visits  it,  not  as  a  guest  or  on  business  with  a  guest,  to  depart, 
and  if  he  refuse  the  innkeeper  has  a  right  to  lay  his  hands  gently  upon 
him,  and  lead  him  out,  and,  if  resistance  be  made,  to  employ  sufficient 
force  to  put  him  out;  and  for  so  doing  he  can  justify  his  conduct  on 
a  prosecution  for  assault  and  battery."  It  will  be  observed  that  the 
author  adopts  in  part  the  language  already  quoted  from  the  courts  of 
Pennsylvania. 

6.  If  it  be  conceded  that  the  prosecutor  went  into  the  hotel  at  the 
request  of  a  guest,  and  for  the  purpose  of  conferring  with  the  latter  on 
business,  still,  in  any  view  of  the  case,  if,  after  entering,  he  engaged 
in  "drumming  "  for  his  employer  when  he  had  been  previously  notified 
to  desist  in  obedience  to  a  regulation  of  the  house,  the  defendant  had 
a  right  to  expel  him  if  he  did  not  use  more  force  than  was  necessary; 
and  if  the  prosecutor,  having  entered  to  see  a  guest,  did  not  then 
solicit  business  from  the  patrons  of  the  hotel,  but  had  done  so  pre- 
viously, the  defendant,  seeing  him  there,  had  a  right  to  use  sufficient 
force  to  eject  him,  unless  he  explained,  when  requested  to  leave,  what 
his  real  intent  was.  Harris  v.  Stevens,  and  Com.  v.  Power,  suj^ra. 
The  guest,  by  sending  for  a  hackman,  could  not  delegate  to  him  the 
right  to  do  an  act  for  which  even  the  guest  himself  might  lawfully  be 
put  out  of  the  hotel. 

7.  If  we  go  further,  and  admit,  for  the  sake  of  argument,  that  the 
principle  declared  in  Markham  v.  Brown,  8  N.  H.  530,  and  relied  on 
to  sustain  the  view  of  the  court  below,  is  not  inconsistent  with  the 
law  on  the  same  subject,  as  we  find  it  laid  down  by  Wharton  and 
other  recognized  authorities,  still  our  case  will  be  found  to  fall  under 
the  exception  to  the  general  rule  stated  in  express  terms  in  that  case. 
The  court  said:  "If  one  comes  to  injure  his  [the  innkeeper's]  house, 
or  if  his  business  operates  directly  as  an  injury,  that  may  alter  the 
case;  but  that  has  not  been  alleged  here;  and  perhaps  there  may  be 
cases  in  which  he  may  have  a  right  to  exclude  all  but  travellers  and 
those  who  have  been  sent  for  by  them.  It  is  not  necessary  to  settle 
that  at  this  time."  There  was  no  evidence  in  JMarkham  v.  Brown 
that  the  proprietor  of  the  hotel  had  any  contract  with  another  stage 
line,  or  would  suffer  pecuniary  loss  or  injury,  if  the  agent  who  was 


STATE   V.    STEELE.  123 

expelled  was  successful  in  his  solicitations;  and  it  seems  that  Angell 
and  others,  who  cite  as  authority  that  case,  as  well  as  Jeucks  v.  Cole- 
man and  Barney  v.  Steam-Boat  Co.,  reconcile  them  by  drawing  the 
distinction  that  in  the  latter  cases,  and  in  the  hypothetical  case  of  an 
innkeeper,  put  by  Justice  Stoky,  the  person  whose  expulsion  was 
justified  was  doing  an  injury  to  the  proprietor,  who  had  him  removed, 
by  diminishing  his  profits  derived  legitimately  from  a  business  used 
as  an  adjunct  to  that  of  common  carrier  or  innkeeper.  In  using  the 
language  quoted  above.  Justice  Parker  seems  to  have  had  in  his 
mind,  without  referring  to  it,  the  opinion  of  Justice  Story,  delivered 
in  the  circuit  court  but  two  years  before  (Jeucks  v.  Coleman,  supra). 
8.  The  defendant,  as  manager  of  the  hotel,  could  make  a  valid 
contract,  for  a  valuable  consideration,  with  Sevier,  to  give  him  the 
exclusive  privilege  of  remaining  in  the  house  and  soliciting  patronage 
from  the  guests  in  any  business  that  grew  out  of  providing  for  the 
comfort  or  pleasure  of  the  patrons  of  the  house.  The  proprietors  of 
the  public  house  might  legitimately  share  in  the  profits  of  any  such 
incidental  business,  as  furnishing  carriages,  buggies,  or  horses  to  the 
patrons,  and  for  that  purpose  had  as  full  right  to  close  their  house 
against  one  who  attempted  to  injure  the  business  in  which  they  had 
such  interest  as  the  owner  of  a  private  house  would  have  had,  and 
this  view  of  the  case  is  consistent  with  the  doctrine  enunciated  in 
Markham  v.  Brown.  There  was  no  evidence  tending  to  show  that 
Chambers  had  actual  permission  from  the  proprietors  to  approach  the 
inmates  of  the  hotel  on  the  subject  of  patronizing  him,  nor  that  they 
had  actual  knowledge  of  the  fact  that  he  had  continued  his  solicita- 
tions after  receiving  a  similar  notice  to  that  sent  to  the  prosecutor. 
The  fact  that  he  was  overlooked  or  passively  allowed  to  remain  in  the 
hotel  (it  may  be  under  the  impression  on  the  part  of  the  defendant 
that  he  had  desisted  from  his  objectionable  practices)  cannot,  in  any 
view  of  the  law,  work  a  forfeiture  of  the  right  to  enforce  a  reasonable 
regulation,  made  to  protect  their  legitimate  business  from  injury. 
If,  therefore,  a  permit  on  the  part  of  the  defendant  to  Chambers  to 
"drum  "  gratuitously  in  the  house  would  at  once  have  opened  his  doors 
to  all  of  the  competitors  of  the  latter  (a  proposition  that  we  are  not 
pi'epared  to  admit),  the  defendant  did  not,  so  far  as  the  testimony  dis- 
closes the  facts,  speak  to  him  on  the  subject;  and  the  soundness  of 
the  doctrine  that,  without  interfering  with  the  legal  rights  of  the 
guests,  the  proprietor  of  a  hotel  is  prohibited  by  the  organic  law  from 
granting  such  exclusive  privileges  to  any  individual,  as  to  the  use  or 
occupancy  of  his  premises,  as  any  other  owner  of  land  may  extend, 
is  not  drawn  in  question.  We  therefore  sustain  the  second  and  third 
assignments  of  error.  His  honor  erred,  for  the  reasons  given,  in  In- 
structing the  jury  that  the  guilt  of  the  defendant  depended  upon  the 
question  whether  he  permitted  Chambers  or  Sevier  to  solicit  custom 
in  the  house.  He  had  a  lawful  right  to  discriminate,  for  a  consider- 
ation, in  favor  of  Sevier,  while  it  does  not  appear  from  the  evidence 


124  HALE    V.    GRAND    TRUNK   RAILROAD. 

that  he  granted  any  exclusive  privileges  to  Chambers.  We  hold  that 
the  regulation  was  such  a  one  as  an  innkeeper  had  the  power  to 
make,  and  must  not  be  understood  as  approving  the  idea  that  the 
sanction  of  the  municipal  authorities  could  impart  validity  to  it,  if  it 
were  not  reasonable  in  itself,  and  within  the  powers  which  the  law 
gives  to  proprietors  of  public  houses  in  order  that  they  may  guard 
their  own  rights  and  protect  their  patrons  from  annoyance.  For  the 
reasons  given  the  defendant  is  entitled  to  a  new  trial. ^ 


HALE  V.    GRAND   TRUNK   RAILROAD. 
Supreme  Court  of  Vermont,  1888. 

[60  Vt.  605;  15  Atl.  300.] 

Ross,  J.^  By  the  agreed  case,  November  2,  1885,  the  defendant 
was  operating  a  railway  from  Portland,  Me.,  to  Canada  Line,  and 
had  a  station  at  Berlin  Falls,  N.  H.  As  such  it  was  carrying  the 
mail  on  its  mail  trains  for  the  United  States  government,  according 
to  the  laws  of  the  United  States,  and  pursuant  to  the  conditions  and 
regulations  imposed  by  the  post-office  department,  at  a  fixed  compen- 
sation. The  plaintiff,  on  that  evening,  in  attempting  to  go  to  its 
mail  train  while  stopping  at  the  station  at  Berlin  Falls,  for  the  pur- 
pose of  mailing  some  letters,  in  the  exercise  of  due  and  proper  care, 
fell  from  an  unguarded  and,  as  he  claims,  insufficiently  lighted  plat- 
form, leading  from  the  station  to  the  train,  and  was  injured.  By  the 
regulations  of  the  post-office  department  it  was  then  the  duty  of 
postal  clerks  on  trains  carrying  the  mail  to  receive  at  the  cars  among 
other  things,  from  the  public,  letters  on  which  the  postage  had  been 
prepaid,  and  then  to  sell  stamps  with  which  to  prepay  such  postage. 
Sections  720,  762,  Instructions  to  Railway  Postal  Clerks.  Hence, 
as  a  part  of  the  service  which  the  defendant  was  performing  for  the 
government,  and  for  which  it  was  receiving  compensation  from  the 
government,  it  was  under  a  duty  to  furnish  the  public  a  reasonably 
safe  passage  to  and  from  its  mail  trains,  while  stopping  at  its  regular 
stations,  for  the  purpose  of  purchasing  stamps  and  mailing  such 
letters.  The  plaintiff  was  a  member  of  the  public,  and  was  attempt- 
ing to  pass  over  the  platform  provided  by  the  defendant  to  the  mail 
train,  for  the  lawful  purpose  of  mailing  two  letters.  By  accepting 
the  carriage  of  the  mail  for  the  government,  the  defendant  became 
under  the  duty  to  furnish  him  a  reasonably  safe  passage  to  its  mail 
train,  for  the  purpose  of  mailing  his  letters.  In  attempting  to  pass 
over  the  platform  to  its  mail  train  for  this  purpose  the  plaintiff  was 

1  See  Flnker  v.  Georgia  R.  R.  &  B.  Co., 81  Ga.  461,  8  S.  E.  529;  Com.  i-.  Power, 
7  Met  596  ;  Cole  r.  Rowen,  88  Mich.  219,  50  N  VV.  138  ;  Smith  v.  New  York,  L.  E.  & 
W.  R.  R.  149  Pa.  249,  24  Atl.  304.  —  Ed. 

2  The  opiniou  only  is  given  ;  it  sufficieutly  states  the  case.  —  Eu. 


HALE    V.    GRAND    TRUNK   RAILROAD.  125 

neither  a  trespasser,  intruder,  nor  loafer,  but  was  there  to  transact 
business,  which  the  defendant  had  undertaken  to  do  with  him,  for  a 
compensation  received  from  the  government;  in  fact  was  there,  at  the 
invitation  of  the  defexidant,  to  transact  business  which  it  had  been 
hired  to  perform  for  and  with  him,  by  the  government.  The  duty  of 
the  defendant  to  furnish  the  plaintiff  a  reasonably  safe  passage  to  its 
mail  train  to  mail  his  letters  was  none  the  less  binding  or  obligatory 
because  the  compensation  received  therefor  came  from  the  government 
rather  than  the  plaintiff.  A.  holds  a  regular  passenger  ticket  over 
a  railroad.  The  duty  of  the  company  operating  the  road  to  carry  him 
safely  is  none  the  less  binding,  nor  are  his  legal  rights,  if  injured,  in 
the  least  abridged  because  the  ticket  was  paid  for  by  the  money  of 
B.,  rather  than  with  his  own  money.  The  government  derives  a 
large  part  of  its  revenue  with  which  it  pays  for  the  mail  service  by 
the  sale  of  postage  stamps  to  whomsoever  of  the  public  may  desire  to 
use  that  arm  of  its  service.  The  money  which  the  plaintiff  had  paid 
for  the  postage  stamps  upon  the  letters  he  was  carrying,  or  which  he 
would  have  paid  the  postal  clerk  for  stamps  to  use  upon  the  letters, 
was  indirectly  a  payment  to  the  defendant  for  the  service  which  it 
was  about  to  perform  for  the  plaintiff,  in  carrying  the  letters  which 
he  was  about  to  post,  on  the  way  towards  their  destination.  But 
whether  tlie  plaintiff  paid  indirectly  to  the  defendant  for  the  service 
and  accommodations  which  it  was  under  a  duty  to  furnish  him,  or  the 
government  paid  therefor,  and  gave  it  to  the  plaintiff,  does  not  vary 
the  defendant's  duty  to  furnish  him  a  reasonably  safe  passage  to  the 
mail  car  for  the  purpose  of  mailing  his  letters,  nor  are  his  legal  rights 
thereby  abated.  Actionable  negligence  is  a  failure  in  legal  duty 
which  occasions  an  injury  to  a  party  free  from  contributory  negli- 
gence, or  who  has  not  failed  in  the  discharge  of  his  duty  in  the  given 
circumstances.  They  have  also  conceded  in  the  agreed  case  that  the 
plaintiff  exercised  due  and  proper  care  on  the  occasion.  They  only 
contend  that  the  defendant  was  under  no  legal  duty  to  furnish  the 
plaintiff  a  reasonably  safe  passage  to  the  mail  car,  for  the  purpose  of 
mailing  his  letters,  mainly  because  he  was  to  pay  the  defendant 
nothing  therefor  directly.  But,  as  we  have  already  endeavored  to 
show,  that  fact  would  not  relieve  the  defendant  from  the  duty,  inas- 
much as  it  was  paid  by  the  government  for  discharging  that  duty  to 
the  public;  that  is,  to  any  person  who  had  occasion  to  go  to  the  mail 
car  when  stopping  at  regular  stations  to  transact  any  lawful  business 
with  the  servants  of  the  government.  These  views  would  affirm  the 
judgment  of  the  county  court,  but,  in  accordance  with  the  stipulation 
of  the  parties,  that  judgment  is  reversed  /)ro  forma,  with  costs  to  the 
plaintiff,  and  the  cause  remanded  for  trial. ^ 

1  See  Bradford  v.  Boston  &  M.  R.  R  ,  160  Mass.  392,  .35  N.  E.  1 131.  —  Ed. 


126  PIEKCE   V.   MILWAUKEE   AND   ST.   PAUL   RAILWAY   CO. 


PIERCE  V.    MILWAUKEE  AND   ST.   PAUL   RAILWAY   CO. 

Supreme  Court  of  WisconsinJ  18G8. 

[23    IHs. -387.1] 

Appeal  from  the  Circuit  Court  for  La  Crosse  County. 

Action  to  recover  the  value  of  eight  bundles  of  bags,  which  had  been 
in  use  for  two  seasons  in  transporting  grain  from  Lake  Q'lty,  Minnesota, 
to  Genoa,  Wisconsin,  by  wa}-  of  the  river  and  the  defendant's  railwaj'. 
The  complaint  alleged  that  the  bags  were  delivered  by  the  packet  com- 
pany duiiig  business  on  the  river,  to  the  defendant  at  La  Crosse  ;  and 
that  defendant,  as  a  common  carrier,  received  said  bags  to  be  safely 
carried  by  it  over  its  railway,  and  delivered  at  Milwaukee  to  the  plaintiff, 
"  for  a  reasonable  compensation  to  be  paid  by  the  plaintiff  therefor." 
Answer,  a  general  denial.  At  the  trial  defendant  sought  to  avoid  lia- 
bility, as  a  common  carrier,  for  the  loss  of  the  bags,  by  showing  a 
uniform  and  long-established  custom  of  the  river  and  railwa}',  that  all 
bags  used  in  the  transportation  of  grain  on  said  river  or  railway  were 
carried  free  of  charge,  when  empt}^  claiming  that  for  bags  so  carried 
it  could  be  held  responsible  only  in  case  of  gross  negligence. 

Paine,  J.  After  carefull}'  considering  the  original  briefs  of  counsel 
and  tlie  arguments  upon  the  rehearing,  I  have  come  to  the  conclusion 
that  the  carrying  of  the  bags  of  the  plaintiff  by  the  company  cannot 
be  considered  as  gratuitous,  whether  the  custom  was  only  to  return  bags' 
free  that  had  gone  over  the  road  filled,  or  whether  it  was  a  general  cus- 
tom to  carry  the  bags  of  customei's  free  botli  ways,  without  regard  to 
the  question  whether,  at  any  particular  time,  they  were  returning  from  a 
trip  on  which  they  had  passed  over  the  road,  filled  or  not.  If  such  a  re- 
lation were  created  by  an  express  contract,  instead  of  being  based  upon 
a  custom,  it  would  seem  clear  that  there  would  be  a  sufficient  consid- 
eration for  the  agreement  to  carry  the  bags.  If  a  written  contract 
should  be  signed  b}'  the  parties,  in  which  the  one  should  agree  to  give 
the  company  the  transportation  of  his  grain  at  its  usual  rates,  and  the 
companv  should  agree  in  consideration  thereof  to  carry  the  gi'ain  at 
those  rates,  and  also  to  carrj'  the  bags  both  wa^'S  whenever  the  cus- 
tomer might  desire  it,  without  an}'  further  charge,  there  can  be  no 
doubt  that  the  giving  to  the  company  his  business,  and  tlie  payment  of 
the  regular  freight,  would  be  held  to  constitute  the  consideration  for 
this  part  of  the  agreement  on  the  part  of  tlie  company.  But  if  it  would 
be  so  in  such  a  case,  it  is  equally  so  when  the  same  understanding  is 
arrived  at  through  Che  means  of  a  custom.  The  company.  In'  cstab- 
lisliing  such  a  custom,  makes  the  proposition  to  all  persons,  that  if 
they  will  become  its  customers,  it  will  carry  their  bags  both  ways  with- 
out an}'  other  compensation  than  the  freight  upon  the  grain.     Persons 

1  This  case  is  abridged.  —  Ed. 


PIERCE    V.    MILWAUKEE    AND    ST.    PAUL   RAILWAY    CO.  127 

who  become  its  customers  in  view  of  such  a  custom,  do  so  with  that 
understanding.  And  the  patronage  and  the  freights  paid  are  the  con- 
sideration for  carrying  the  bags.  The  company,  in  making  such  a 
proposition,  must  consider  that  this  additional  privilege  constitutes  an 
inducement  to  shippers  to  give  it  their  freight.  And  it  must  expect  to 
derive  a  sufticient  advantage  from  an  increase  of  business  occasioned 
by  such  inducement,  to  compensate  it  for  such  transportation  of  the 
bags.  And  it  ought  not  to  be  allowed,  when  parties  have  become  its 
customers  with  such  an  understanding,  after  losing  their  bags,  to  shelter 
itself  under  the  pretext  that  the  carrying  of  the  bags  was  a  mere  gra- 
tuit}',  and  it  is  therefore  liable  onl}'  for  gross  negligence. 

It  makes  no  difference  that  the  custom  is  described  as  being  to  carry 
the  bags  free.  In  determining  whether  they  are  really  carried  "  free" 
or  not,  the  whole  transaction  between  the  parties  must  be  considered. 
And  when  this  is  done,  it  is  found  that  all  that  is  meant  by  saying  that 
the  emptv  bags  are  carried  free,  is,  that  the  customers  pa}-  no  other 
consideration  for  it  than  the  freight  derived  from  the  business  they  give 
the  company.  But  this,  as  already  seen,  is  sufficient  to  prevent  the 
transportation  of  the  bags  from  being  gratuitous.  Smith  v.  R.  R.  Co., 
24  N.  Y.  222  ;  see  also  Bissel  v.  Railroad  Co.,  25  id.  442.  It  will  be 
seen  that  in  that  case  a  majority  of  the  court  held,  that  where  a  pas- 
senger expressly  agreed  to  take  certain  risks  of  injury  upon  himself, 
for  a  consideration,  the  agreement  was  valid  and  binding.  But  Denio, 
Wright,  and  Sutherland  dissented,  and  Denio,  J.,  in  his  opinion,  on 
pages  455  and  456,  states  what  seems  to  be  the  true  construction  and 
effect  of  such  a  contract,  holding  that  a  person  riding  in  charge  of 
cattle,  under  a  contract  to  carry  them  at  a  specified  price  per  car  load, 
and  to  carry  a  person  "  free"  to  take  charge  of  them,  was  not  a  gra- 
tuitous passenger.  The  other  two  dissenting  justices  doubtless  agreed 
with  him  upon  this  point.  And  it  is  evident  from  the  remarks  of 
Selden,  J.,  on  page  447,  that  he  did  not  hold  the  opposite  view,  but 
rested  his  decision  upon  the  ground  that  the  plaintiff  was  bound  by  the 
contract  to  take  the  risk,  whether  he  was  a  gratuitous  passenger  or  not. 
See  also  Steamboat  New  World  v.  King,  16  How.  (U.  S.)  469,  in 
which  it  was  held,  that,  under  a  general  custom  of  steamboats  to  carry 
"  steamboat  men  "  free,  a  steamboat  man,  riding  on  a  free  ticket,  was 
not  to  be  regarded  as  a  gratuitous  passenger ;  but  that  the  considera- 
tion was  to  be  found  in  those  advantages  which  induced  the  establish- 
ment of  the  custom  —  a  doctrine  which  seems  directly  applicable  to  the 
question  under  consideration. 

I  can  see  no  ground  for  any  such  difficulty  as  that  suggested  by  the 
appellant's  counsel  on  the  re-argument.  He  said,  if  this  undertaking 
to  return  bags  free  was  to  be  considered  a  matter  of  contract  on  the 
part  of  the  company,  it  would  be  unable  to  collect  its  freights  on  deliv- 
ering grain,  upon  the  ground  that  its  contract  was  not  then  completed. 
But  this  could  not  be  so.  The  company,  on  delivering  the  grain,  parts 
with  the  possession  of  the  property  to  the  shipper  or  his  consignee. 


128  WILSON    V.   GRAND   TRUNK   RAILWAY. 

And  on  doing  that,  it  is  of  course  entitled  to  its  freight.  And  its  agree- 
ment to  return  the  bags  without  further  charge,  or  to  carry  them  free 
both  ways  whenever  its  customer  should  deliver  them  empty  for  that 
purpose,  could  not  have  the  effect  of  destroying  this  right.  The  con- 
tract would  be  construed  according  to  the  intention  of  the  parties. 
See  Angell  on  Carriers,  §  399,  note  3,  and  cases  cited.  And  here  it 
would  be  very  obvious  that  neither  of  the  parties  contemplated  any 
relinquishment  by  the  company  of  its  right  to  freight  on  delivering  the 
grain.  The  transaction  for  that  purpose  would  be  distinct.  Here  the 
defendant's  evidence  showed  that  the  plaintiff  was  a  "customer."  The 
company  claims  that  he  had  complied  with  the  custom  on  his  part,  so 
as  to  make  it  applicable  to  him.  But  if  he  had  done  so,  as  that  con- 
stitutes a  sufficient  consideration  to  prevent  the  carrying  of  his  bags 
from  being  gratuitous,  the  company  is  liable. 

It  is  immaterial,  therefore,  whether  the  instruction  excepted  to  was 
strictly  accurate  or  not,  in  assuming  that  there  was  evidence  tending  to 
show  that  the  bags  were  on  a  return  trip,  after  having  gone  over 
the  road  filled  ;  as  neither  in  that  case,  nor  on  the  custom  as  claimed 
to  have  been  shown  by  the  appellant,  would  the  transportation  be 
gratuitous. 

By  the  Court.     The  judgment  is  affirmed,  with  costs.^ 


WILSON  V.  GRAND   TRUNK  RAILWAY. 
Supreme  Court  of  Maine,  1868. 

[56  Me.  60.2] 

Appleton,  C.  J.  The  plaintiff  was  a  passenger  on  board  the  defend- 
ants' cars,  having  seasonably  paid  her  fare.  Her  baggage  was  not  with 
her,  it  having  been  left  behind,  without  fault  of  the  defendants.  Some 
two  or  three  days  afterwards  it  was  left  in  charge  of  their  servants,  to 
be  transported  to  the  Empire  station  on  their  line,  but  it  never  reached 
its  place  of  destination.  This  suit  is  brought  to  recover  the  value  of 
the  baggage  lost. 

Tlie  presiding  justice  instructed  the  jury,  "That,  if  they  should  find 
that  the  plaintiff  went  on  board  the  defendants'  road  as  a  passenger,  on 
Tuesday  preceding,  without  baggage,  and  that  the  trunk  and  its  con- 
tents were  ordinary  personal  baggage,  such  as  a  passenger  would  be 
entitled  to  take  with  himself  without  extra  charge,  it  was  not  necessarj- 
that  there  should  be  proof  that  anything  was  paid  for  carrying  the 
trunk  between  the  same  points ;  that  the  price  paid  by  the  plaintiff,  for 

1  Compare :  Knox  v.  Rues,  14  Ala.  249  ;  Chouteau  v.  Anthony,  20  Mo.  549  :  Pen- 
der V.  Robbins,  6  Jones  L.  207  ;  Spears  v.  Lake  Shore  R.  R.,  67  Barb.  513  ;  Dudley  v. 
Ferry  Co.,  42  N.  J.  L.  25.  —  Ed. 

2  Opinion  only  is  printed.  —  Ed. 


WILSON    V.    GRAND    TRUNK    RAILWAY.  129 

her  own  passage,  and  the  evidence  in  the  case,  if  found  to  be  true,  were 
sutiicient  consideration  for  the  promise  alleged  in  the  writ." 

As  the  plaintiff's  trunk  was  talien  for  transportation  some  days  after 
she  had  passed  over  the  defendants'  road,  the  substance  of  the  charge 
of  the  presiding  judge  was,  that  the  price  paid  for  the  plaintiff's  ticlvct 
included  the  compensation  due  to  the  defendants  for  their  subsequent 
transportation  of  her  trunk,  the  trunk  being  personal  baggage.  In 
other  words,  it  was  not  necessary  that  the  baggage  of  the  passenger 
should  go  with  the  passenger,  but,  it  might  be  afterwards  subsequently 
and  without  any  additional  charge  for  its  freight. 

The  fare  for  the  passenger  includes  compensation  for  the  carriage  of 
his  l^aggage,  as  to  which  the  carriers  of  passengers  are  to  be  regarded 
as  common  carriers.  There  need  be  no  distinct  contract  for  the  car- 
riage of  the  baggage.  The  fare  covers  the  compensation  for  the  freight 
of  the  baggage.  The  baggage  must  be  ordinary  baggage,  such  as  a 
traveller  takes  with  him  for  his  personal  comfort,  convenience,  or  pleas- 
ure for  the  journey.  It  must  be  the  "  ordinary  luggage  "  of  a  travel- 
lei",  regard  being  had  to  the  journey  proposed. 

It  is  implied  in  the  contract  that  the  baggage  and  the  passenger  go 
together.  "  The  general  habits  and  wants  of  mankind,"  observes 
Erie,  C.  J.,  in  Phelps  v.  L.  &  N.  W.  Railway  Co.,  115  E.  C.  L.  327, 
"  must  be  taken  to  be  in  the  mind  of  a  carrier  when  he  receives  a  pas- 
senger for  conve^'ance  ;  and  the  law  makes  him  responsible  for  all  such 
things  as  may  be  fairly  carried  by  the  passenger  for  his  personal  use." 
In  Cahill  v.  L.  &  N.  W.  Railway  Co.,  100  E.  C.  L.  172,  Willes,  J., 
sa3'S,  "When  a  passenger  takes  a  ticket  at  the  ordinary  charge,  he 
must,  according  to  common  sense  and  common  experience,  be  taken  to 
contract  with  the  railwa,y  company  for  the  carriage  of  himself  and  his 
personal  luggage  only;  and  that  he  can  no  more  extend  the  contract 
to  the  conve3'ance  of  a  single  package  of  merchandise  than  of  his  en- 
tire worldlj'  possessions."  In  Smith  v.  Railroad,  44  N.  H.  330,  Bel- 
lows, J.,  uses  the  following  language: — "Until  a  comparatively 
recent  period  the  English  courts  were  inclined  to  hold  that  carriers  of 
passengers  by  stage-coaches,  and  otherwise,  were  not  liable  for  injuries 
to  their  baggage,  unless  a  distinct  price  was  paid  for  its  transporta- 
tion. But  it  is  now  well  settled  that  the  price  paid  for  the  passenger 
includes  also  the  personal  baggage  required  for  his  personal  accommo- 
dation ;  the  custody  of  the  baggage  being  regarded  as  accessor}'  to  the 
principal  contract.  ...  In  general  terms  it  may  include,  not  onl}'  his 
personal  apparel,  but  other  conveniences  for  the  journey,  such  as  a 
passenger  usually  has  with  him  for  his  personal  accommodation."  "The 
baggage,"  observes  Mullin,  J.,  in  Merrill  v.  Grinnell,  30  N.  Y.  619, 
"  must  be  such  as  is  necessary  for  the  particular  journey  that  the  pas- 
senger is,  at  the  time  of  the  employment  of  the  carrier,  actually 
making." 

It  follows  from  the  nature  and  object  of  the  contract,  that  the  right 
of  the  passenger  is  limited  to  the  baggage  required  for  his  pleasure. 


130  WOODS   V.   DEVIN. 

convenience,  and  necessity  during  the  journey.  As  it  is  for  his  use  and 
convenience,  it  must  necessarily  be  with  him,  as  it  is  for  him.  He  may 
reasonably  be  expected  to  exercise  some  supervision  over  it  during,  and 
be  ready  to  receive  it,  at  the  termination  of  his  journe}'.  In  the  pres- 
ent case  the  baggage  was  forwarded  two  days  after  the  plaintiff  had 
passed  over  the  road.  If  its  transmission  ma}'  be  delayed  two  days 
and  the  carrier  is  required  to  take  it  without  anj'  compensation  save  the 
fare  paid  by  the  passenger,  who  had  preceded  it,  it  may  equall}-  be 
delayed  weeks  or  months  and  the  carrier  be  required  to  forward  it  with- 
out any  additional  pay.  It  presents  a  different  question  if  the  dela}' 
is  caused  b}'  the  fault  of  the  carrier,  or  there  is  a  special  agreement 
with  him  or  his  authorized  agent  for  the  subsequent  transportation  of 
the  passenger's  baggage. 

The  fare  paid  by  a  passenger  over  a  railroad,  is  the  compensation  for 
his  carriage,  for  the  transportation  at  the  same  time  of  such  baggage 
as  he  may  require  for  his  personal  convenience  and  necessity  during 
his  journey.  Baggage  subsequentl}'  forwarded  by  his  direction,  in  the 
absence  of  an}'  special  agreement  with  the  carrier,  or  of  negligence  on 
his  part,  is  liable,  like  any  other  article  of  merchandise,  to  the  payment 
of  the  usual  freight. 

The  declaration  is  in  the  usual  form  against  carriers.  It  is  well  set- 
tled that  the  carrier  need  not  be  paid  in  advance,  unless  he  specially 
demand  it,  and  that  he  has  a  lien  on  the  goods  carried  for  his  freight. 
It  is  not  necessary  to  determine  whether  or  not  the  defendants  would 
be  liable  for  the  trunk  as  common  carriers  of  merchandise  for  compen- 
sation. The  case,  as  presented  to  the  jury  and  as  argued  before  us, 
raises  the  single  question  of  the  obligation  of  the  carrier  of  passengers 
to  take  their  baggage  at  a  time  subsequent  to  that  of  the  carriage  of 
the  passenger,  without  additional  compensation. 

Exceptions  sustained. 

Kent,  Dickerson,  Barrows,  Danforth,  and  Tapley,  JJ.,  con- 
curred.^ 


WOODS  V.  DEVIN. 
Supreme  Court  of  Illinois,  1852. 

[13  ///.  746.2] 

Treat,  C.  J.  This  was  an  action  on  the  case  brought  by  Devin 
against  Woods.  The  declaration  alleged,  in  substance,  that  the  plain- 
tiff, on  the  7th  of  August,  1851,  delivered  on  board  the  steamboat 
"  Governor  Briggs,"  then  lying  at  Peoria,  and  owned  by  the  defendant 

1  Compare  :  Beers  v.  Boston  R.  R.,  67  Conn.  417  ;  Perkins  v.  Wright,  37  Ind.  27  ; 
Warner  v.  Burlington,  &c.  li.  R.,  22  la.  166;  Flint  R.  R.  v.  Weir,  37  Mich.  Ill  ; 
Chesapeake,  &c.  R.  R.,  v.  Wilson,  21  Grat.  654.  —  Ed. 

2  Opinion  only  is  printed.  —  Ed. 


WOODS   V.    DEVIN.  131 

and  used  b}-  him  in  the  transportation  of  passengers  and  freight  on  the 
Illinois  River  between  Peoria  and  La  Salle,  a  carpet-bag  containing  one 
case  of  duelling-pistols,  one  pocket-pistol,  and  various  articles  of  wear- 
ing apparel,  of  the  value  of  S200,  to  be  carried  on  said  boat  from 
Peoria  to  La  Salle  for  a  certain  rewai'd,  and  that  the  defendant  received 
the  same  for  the  purpose  aforesaid ;  3-et  the  defendant,  not  regarding 
his  dut}-  in  the  premises,  did  not  deliver  the  carpet-bag  and  contents 
at  La  Salle,  but,  on  the  contrary,  lost  the  same.  The  plea  was,  not 
guilt}'. 

It  appeared,  in  evidence,  that  on  the  7th  of  August,  1851,  the  plain- 
tiff was  about  to  take  a  journey  from  Peoria  to  the  city  of  New  York, 
and  engaged  his  passage  for  La  Salle  in  the  steamboat  "  Governor 
Briggs,"  then  owned  by  the  defendant,  and  run  by  him  on  the  Illinois 
River  between  Peoria  and  La  Salle  for  the  conveN'ance  of  passengers 
and  freight ;  that  the  plaintiff  sent  his  trunk  and  carpet-bag  to  the  boat 
as  she  was  about  to  leave  Peoria  for  La  Salle,  and  the  same  were  re- 
ceived on  board  b}'  the  direction  of  the  defendant ;  that  the  plaintiff 
left  the  boat  temporarily,  and  while  absent  on  shore  the  carpet-bag  was 
stolen  and  rifled  of  its  contents,  and  the  same  were  never  recovered  b}" 
him  ;  that  he  did  not  proceed  on  his  journey  in  consequence  of  the  loss 
of  the  carpet-bag ;  that  the  plaintiff  did  not  pay  his  fare  for  the  pas- 
sage, nor  was  there  any  express  contract  for  the  carriage  of  the  trunk 
and  carpet-bag ;  that  the  carpet-bag  contained  articles  of  wearing  ap- 
parel of  the  value  of  $36,  a  pair  of  duelling-pistols  of  the  value  of  825, 
and  a  pocket-pistol  of  the  value  of  $15. 

The  court  refused  to  give  the  following  instructions  asked  by  the  de- 
fendant :  "  That  if  the  carpet-bag  was  merely  baggage  as  is  usual  for 
passengers  to  carry,  and  was  designed  as  such  by  the  plaintiff,  the 
plaintiff  cannot  recover  under  this  declaration,  and  the  jury  will  find 
for  the  defendant.  If  the  carpet-bag  was  for  the  purpose  and  use  of 
carrying  clothing,  &c. ,  the  plaintiff  cannot  recover  for  the  contents  of 
the  bag,  except  for  such  articles  as  are  usually  carried  by  travellers ; 
and  the  jury  are  the  judges  whether  or  not  the  pistols  mentioned  are 
usually  a  portion  of  the  baggage  of  a  travelling  gentleman,  and  if  not, 
the  jury  will  not  allow  any  amount  for  the  pistols." 

The  jury  found  the  issue  in  favor  of  the  plaintiff,  and  assessed  his 
damages  at  873.75.  The  court  overruled  a  motion  for  a  new  trial,  and 
gave  judgment  on  the  verdict. 

A  common  carrier  of  passengers  is  responsible  for  the  baggage  of  a 
passenger.  His  duty  in  this  respect  is  the  same  as  that  of  a  common 
carrier  of  goods  ;  and  he  can  only  excuse  himself  for  the  non-delivery 
of  the  baggage  of  a  passenger  by  showing  that  it  was  lost  by  the  act 
of  God  or  of  the  public  enemy.  His  responsibility  commences  when 
the  baggage  is  delivered  to  him  or  his  authorized  agent.  The  Camden 
and  Amboy  Railroad  v.  Belknap,  21  Wend.  354.  His  compensation 
for  carrying  the  baggage  is  included  in  the  fare  of  the  passenger.  The 
Orange  County   Bank  v.  Brown,  9  Wend.  85  ;  Hawkins  v.  Hoffman, 


132  WOODS    V.   DEVIN. 

6  Hill,  586.  Prepa3'ment  of  the  fare  is  not  necessar}-  in  order  to  charge 
the  carrier  for  the  loss  of  the  baggage.  The  Citizens'  Bank  v.  The 
Nantucket  Steamboat  Company,  2  Story's  R.  16.  He  has  a  remedy  by 
action  on  the  implied  contract  of  the  passenger  to  pay  the  customary 
fare  ;  and  he  has  also  a  lien  on  the  baggage,  which  he  is  not  compelled 
to  deliver  until  the  fare  is  paid.  Angell  on  Carriers,  §  375  ;  Story  on 
Bailments,  §  604.  By  not  requiring  the  fare  to  be  paid  in  advance,  he 
relies  for  remuneration  on  the  remedies  indicated. 

In  the  present  case,  the  defendant  was  a  common  carrier  of  passen- 
gers. The  plaintiff  engaged  a  passage  to  La  Salle,  and  sent  his  bag- 
gage to  the  boat.  The  moment  it  was  received  on  board  the  defendant 
became  responsible  for  its  safe  delivery  at  the  port  of  destination,  loss 
occasioned  by  inevitable  accident  or  the  public  enemies  only  excepted. 
The  carpet-bag  was  stolen  from  the  boat  and  never  recovered  b}'  the 
plaintiff.  Loss  by  theft  is  not  within  either  of  the  exceptions  to  the 
risk  of  a  common-cari-ier.  The  defendant  is  therefore  chargeable  with 
tlie  value  of  the  articles  in  the  carpet-bag,  unless  they  are  not  to  be 
regarded  as  forming  a  part  of  the  baggage  of  a  traveller.  It  is  con- 
ceded that  the  articles  of  wearing  apparel  were  properly  baggage  ;  and 
the  only  question  is  in  respect  to  the  pistols.  What  constitutes  the 
baggage  of  a  traveller,  for  the  loss  of  which  a  common  carrier  is  liable, 
is  a  question  of  some  practical  importance,  and  one  that  has  been  much 
considered  in  reported  cases.  It  is  argued  in  all  the  cases  that  the 
term  "  baggage  "  includes  the  wearing  apparel  of  the  traveller.  In  tlie 
Orange  County  Bank  (\  Brown,  supm,  the  trunk  of  a  passenger  con- 
taining $11,250  in  money  belonging  to  the  bank  was  lost;  and  the 
bank  sought  to  recover  tlie  amount  of  the  carrier,  on  the  ground  that 
it  was  part  of  the  baggage  of  the  passenger.  But  the  court  decided 
tliat  the  money  did  not  fall  within  the  term  baggage  ;  and  that  the 
attempt  to  carry  it  free  of  reward  imder  cover  of  baggage  was  an  im- 
position on  the  carrier.  In  Pardu  v.  Drew,  25  Wend.  457,  where  a 
trunk  containing  valuable  merchandise,  and  nothing  else,  was  taken  on 
board  of  a  boat  by  a  passenger,  and  deposited  with  the  ordinary  bag- 
gaae.  it  was  held  that  the  carrier  was  not  chargeal)le  for  its  loss.  In 
Hawkins  v.  Hoffman,  supra,  it  was  decided  that  the  term  "  baggage  " 
did  not  embrace  samples  of  merchandise  carried  by  a  passenger  in  liis 
trunk  for  the  purpose  of  enabling  him  to  make  bargains  for  the  sale  of 
goods.  In  Cole  v.  Goodwin,  19  Wend.  251,  and  Weed  v.  The  Saratoga 
and  Schenectady  Railroad  Company,  19  Wend.  534,  the  court  held  that 
a  carrier  was  liable  for  money  in  the  trunk  of  a  passenger  not  exceeding 
a  reasonable  amount  for  travelling  expenses.  In  Jones  v.  Voorhees, 
10  Oliio,  145,  a  carrier  was  made  liable  for  the  value  of  a  gold  watch 
lost  from  the  trunk  of  a  passenger.  In  McGill  v.  Rowand,  3  Barr, 
451,  the  huslxand  was  permitted  to  recover  of  tlie  carrier  the  value  of 
his  wife's  jewelry  which  had  been  taken  from  her  trunk  on  the  coach 
in  wliich  she  was  a  passenger.  In  Porter  v.  Hildebrand,  2  Har.  129. 
the  court  held  that  a  carpenter  might  recover  from  a  carrier  the  value 


WOODS   V.   DEVIX.  133 

of  tools  contjiined  with  clothing  in  his  trunk,  which  the  carrier  had 
lost,  the  jury  liaving  found  that  they  were  the  reasonable  tools  of  a 
carpenter. 

Tiie  principle  of  the  authorities  is,  that  the  term  "  baggage  "  in- 
cludes a  reasonable  amount  of  money  in  the  trunk  of  a  passenger  in- 
tended for  travelling  expenses,  and  such  articles  of  necessity  and 
convenience  as  are  usually  carried  by  passengers  for  their  personal  use, 
comfort,  instruction,  amusement,  or  protection  ;  and  that  it  does  not 
extend  to  money,  merchandise,  or  other  valuables,  although  carried  in 
the  trunks  of  passengers,  which  are  designed  for  different  purposes. 
And  regard  may  with  propriety  be  had  to  the  object  and  length  of  the 
journey,  the  expenses  attending  it,  and  the  habits  and  condition  in 
life  of  the  passenger.  A  more  definite  rule  cannot  well  be  laid  down. 
The  remarks  of  Bunson,  J.,  in  Hawkins  v.  Hoffman,  supra,  are  perti- 
nent. He  says,  "It  is  undoubtedl}'  difficult  to  define  with  accuracy 
what  shall  be  deemed  baggage  within  the  rule  of  the  carrier's  lialjilit}'. 
I  do  not  intend  to  say  that  the  articles  must  be  such  as  everv  man 
deems  essential  to  his  comfort ;  for  some  men  carrj'  nothing,  or  very 
little,  with  them  when  the}'  travel,  while  others  consult  their  conven- 
ience b}'  carrying  many  things.  Nor  do  I  intend  to  say  that  the  rule 
is  confined  to  wearing  apparel,  brushes,  razors,  writing  apparatus,  and 
the  like,  which  most  persons  deem  indispensable.  If  one  has  books 
for  instruction  or  his  amusement  by  the  way,  or  carries  his  gun  or  fish- 
ing-tackle, they  would  undoubtedly  fall  within  the  terra  '  baggage,' 
because  thej'  are  usually  carried  as  such." 

We  think  the  articles  in  question  formed  a  part  of  the  baggage  of 
the  plaintiff,  and  as  such  come  within  the  risk  of  the  carrier.  They 
were  not  carried  for  purposes  of  sale  or  traffic,  but  for  the  personal  use 
and  protection  of  the  passenger ;  and  it  is  not  unusual  for  such  articles 
to  be  carried  in  the  trunks  of  travellers. 

There  was  no  substantial  variance  between  the  declaration  and  the 
evidence.  The  declaration  alleged  that  the  defendant  received  the  car- 
pet-bag, to  be  carried  from  Peoria  to  La  Salle  for  a  reward.  The  proof 
clearly  sustained  the  averment.  It  indeed  showed  in  addition,  that  the 
plaintiff  engaged  a  passage  for  the  same  destination,  and  that  he  had 
other  baggage.  But  as  the  onl}'  cause  of  complaint  against  the  defend- 
ant was  the  loss  of  the  carpet-bag,  it  was  not  necessar}'  to  state  the 
additional  matter  in  the  declaration,  especiall}'  in  an  action  on  the  case 
for  the  breach  of  the  common-law  dut}'  of  the  carrier.  It  might  per- 
haps be  otherwise  in  an  action  of  assumpsit  on  the  contract  of  the  car- 
rier See  Weed  v.  The  Saratoga  and  Schenectad}'  Railroad  Company, 
siipra. 

The  judgment  is  affirmed.  Judgment  affirmed} 

1  Compare:  Hudston  v.  Midland  R.  R.,  L.  R.  4  Q.  B.  366;  Fraloff  v.  New  York 
R.  R.,  100  U.  S.  24;  Hickox  v.  Naugatuck  R.  R.,  31  Conn.  281 ;  Staub  v.  Kendrick, 
121  Ind.  226;  Connolly  v.  Warren,  106  Mass.  146;  Porter  v.  Hildebrand,  14  Fa.  St. 
149  ;  Oakes  v.  No.  Pacific  R.  R.,  20  Ore.  392.  — Ed. 


134  WEISENGER   V.   TAYLOR. 

WEISENGER  v.    TAYLOR. 

Court  of  Appeals,  Kentucky,   1866. 

[1  Bush,  275.1] 

Robertson,  J.  The  appellant,  Henry  Weisenger,  sued  the  appellees, 
J.  M.  and  G.  H.  Taylor,  for  $90,  stolen  from  a  room  occupied  by  him 
while  a  guest  in  their  public  inn  ;  charging  that  the  loss  resulted  from 
their  culpable  negligence. 

The  Circuit  Court  sustained  a  demurrer  to  the  petition,  and,  on  fail- 
ure to  amend,  dismissed  it. 

The  common,  like  the  civil  law,  but  even  more  stringent,  exacts  of 
inn-keepers,  as  bailees  of  the  baggage  and  goods  of  their  guests, 
extraordinary  care,  and  imposes  on  them  a  responsibility  nearly  com- 
mensurable with  that  of  common  carriers,  approximating  insurance  of 
such  articles  when  confided  expressly  or  impliedly  to  their  custody  and 
care.  But  whenever  the  guest  assumes  the  custody-  and  control  of  his 
goods  in  such  a  way  as  to  indicate  that  he  does  not  trust  the  inn-keeper, 
and  concedes  to  him  no  control,  the}'  are  not  in  the  implied  custody  of 
the  inn-keeper,  and  he  is  therefore  not  responsible,  unless  they  shall  be 
stolen  b}-  some  of  his  own  household,  whose  honesty  and  fidelitj'  be  is 
presumed  to  guarantee. 

The  inn-keeper's  responsibility  is  only  co-extensive  with  his  custody 
and  control,  and  his  pledge  of  the  integrity  of  his  servants.  And  the 
question  of  custod}'  and  control  depends  on  facts  indicative  of  inten- 
tion. If  the  guest,  having  an  article  not  attached  to  his  person,  nor 
carried  about  with  him  for  his  personal  convenience  —  such,  for  ex- 
ample, as  a  bag  of  gold,  a  case  of  jewehy,  or  a  package  of  paper 
currenc}^  —  the  fact  that  he  does  not  either  notif\'  the  host  of  it,  or 
offer  to  place  it  in  his  actual  custody,  would  imply  that  he  trusted  to 
his  own  care,  and  intended  to  risk  all  consequences.  And,  if  the  article 
thus  held  by  himself  alone  should  be  stolen  from  him  while  abiding  in 
the  inn,  the  loss,  like  the  preferred  custody,  might  be  his  own  alone, 
unless  it  resulted  from  the  dishonest}'  of  some  of  the  household.  The 
inn-keeper,  deprived  of  both  custody  and  control,  could  not  be  held 
responsible  on  any  just  or  consistent  principle. 

But  such  articles  as  apparel  worn  at  the  time,  and  watch  and  pocket 
mone}',  are  not  expected  to  be  delivered  to  the  inn-keeper  for  safe- 
keeping, and  the  retention  of  them  in  the  guest's  room  neither  keeps 
them  from  the  implied  custody  of  the  inn-keeper,  nor  implies  a  waiver 
of  his  responsibility.  In  respect  to  such  articles,  therefore,  thus  kept, 
the  inn-keeper  is  prima  facie  the  responsible  curator.  And  it  seems 
to  us  that  the  S90  kept  in  the  appellant's  pocket  for  daily  use  for  inci- 
dental expenses,  should  "be  considered  as  embraced  in  this  last  categor}'. 

1  Opinion  only  is  printed.  —  Ed. 


BUCKLAND  V.    ADAMS  EXPRESS  CO.  1'. 


This  being  so  adjudged,  the  petition  contains  every  allegation  necessary 
to  show  a  cause  of  action  to  be  tried  on  a  proper  issue  of  fact. 

"Wlierefore,  the  judgment  is  reversed,  and  cause  remanded  for  further 
pleadings  and  proceedings.^ 


BUCKLAND   v.    ADAMS   EXPRESS   CO. 
Supreme  Court  of  Massachusetts,  1867. 

[97  Mass.  124-.] 

Contract  to  recover  the  value  of  a  case  of  pistols, 
BiGELOw,  C.  J.  We  are  unable  to  see  any  valid  reason  for  th-e  sug- 
gestion that  the  defendants  are  not  to  be  regarded  as  common  carriers. 
The  name  or  style  under  which  they  assume  to  carry  on  their  business 
is  wholly  immaterial.  The  real  nature  of  their  occupation  and  of  the 
legal  duties  and  obligations  which  it  imposes  on  them  is  to  be  ascer- 
tained from  a  consideration  of  the  kind  of  service  which  they  hold 
themselves  out  to  the  public  as  ready  to  render  to  those  who  may  have 
occasion  to  emplo}'  them.  Upon  this  point  there  is  no  room  for  doubt. 
They  exercise  the  employment  of  receiving,  carrying,  and  delivering 
goods,  wares,  and  merchandise  for  hire  on  behalf  of  all  persons  who 
ma}'  see  fit  to  require  their  services.  In  this  capacity  the}'  take  prop- 
erty from  the  custody  of  the  owner,  assume  entire  possession  and  con- 
trol of  it,  transport  it  from  place  to  place,  and  deliver  it  at  a  point  of 
destination  to  some  consignee  or  agent  there  authorized  to  receive  it. 
This  statement  embraces  all  the  elements  essential  to  constitute  the 
relation  of  common  carriers  on  the  part  of  the  defendants  towards  the 
persons  who  employ*  them.  Dwight  v.  Brewster,  1  Pick.  50,  53  ;  Lowell 
Wire  Fence  Co.  v.  Sargent,  8  Allen,  189  ;  2  Redfield  on  Railways,  1-16. 
But  it  is  urged  in  behalf  of  the  defendants  that  they  ought  not  to  be 
held  to  the  strict  liabilitj'  of  common  carriers,  for  the  reason  that  the 
contract  of  carriage  is  essentially  modified  b}'  the  peculiar  mode  in 
which  the  defendants  undertake  the  performance  of  the  service.  The 
main  ground  on  which  this  argument  rests  is,  that  persons  exercising 
the  emploj'ment  of  express  carriers  or  messengers  over  railroads  and 
by  steamboats  cannot,  from  the  very  nature  of  the  case,  exercise  any 
care  or  control  over  the  means  of  transportation  which  the}^  are  obliged 
to  adopt ;  that  the  carriages  and  boats  in  which  the  merchandise  in- 
trusted to  them  is  placed,  and  the  agents  or  servants  b}'  whom  they  are 
managed,  are  not  selected  by  them  nor  subject  to  their  direction  or 
supervision ;    and  that  the  rules  of  the  common  law,    regulating  the 

1  Compare :  Lanier  v.  Youno:blood,  73  Ala.  587  ;  Matter  v.  Brown,  1  Cal.  221 ; 
Sassen  v.  Clark,  37  Ga.  242;  Giles  v.  Fautelroy,  13  Md.  434 ;  Smith  v.  Wilson,  36 
Minn.  334;   Scheffer  v.  Wilson,  5  S.  Dak.  233.—' Ed.     - 

2  This  case  is  abridged.  —  Ed. 


136  BUCKLAND  V.    ADAMS  EXPRESS  CO. 

duties  and  liabilities  of  carriers,  having  been  adapted  to  a  different 
mode  of  conducting  business  bj  wliich  the  carrier  was  enabled  to  select 
his  own  servants  and  vehicles  and  to  exercise  a  personal  care  and  over- 
sight of  them,  are  wholh-  inapplicable  to  a  contract  of  carriage  by 
wliich  it  is  understood  between  the  parties  that  the  service  is  to  be 
performed,  in  part  at  least,  by  means  of  agencies  over  whicli  the  car- 
rier can  exercise  no  management  or  control  whatever.  But  this  argu- 
ment, though  specious,  is  unsound.  Its  fallacy-  consists  in  the  assumption 
that  at  common  law,  in  the  absence  of  any  express  stipulation,  tlie 
contract  with  an  owner  or  consignor  of  goods  delivered  to  a  carrier  for 
transportation  necessarily  implies  that  they  are  to  be  carried  by  the 
party  with  whom  the  contract  is  made,  or  by  servants  or  agents  under 
his  immediate  direction  and  control.  But  such  is  not  the  undertaking 
of  the  carrier.  The  essence  of  the  contract  is  that  the  goods  are  to  be 
carried  to  their  destination,  unless  the  fulfilment  of  this  undertaking  is 
prevented  by  the  act  of  God  or  the  public  enemj'.  This,  indeed,  is  the 
whole  contract,  whetlier  the  goods  are  carried  b^'  land  or  water,  b}-  the 
carrier  himself  or  by  agents  emplo3'ed  by  him.  The  contract  does  not 
imply  a  personal  trust,  which  can  be  executed  only  b}'  the  contracting 
party  himself  or  under  his  supervision  by  agents  and  means  of  trans- 
portation directly  and  absolutely*  within  his  control.  Long  before  the 
discover}'  of  steam  povver,  a  carrier  who  undertook  to  convey  merchan- 
dise from  one  point  to  another  was  authorized  to  perform  the  service 
through  agents  exercising  an  independent  employment,  which  the}-  car- 
ried on  by  the  use  of  their  own  vehicles  and  under  the  exclusive  care 
of  their  own  servants.  It  certainly  never  was  supposed  that  a  person 
■who  agreed  to  carry  goods  from  one  place  to  another  by  means  of 
wagons  or  stages  could  escape  liabilitj-  for  the  safe  carriage  of  the  prop- 
ert}'  over  any  part  of  the  designated  route  by  showing  that  a  loss  hap- 
pened at  a  time  when  the  goods  were  placed  by  him  in  vehicles  wliich 
he  did  not  own,  or  which  were  under  the  charge  of  agents  whom  he  did 
not  select  or  control.  The  truth  is  that  the  particular  mode  or  agency 
by  which  the  service  is  to  be  performed  does  not  enter  into  the  contract 
of  carriage  with  the  owner  or  consignor.  The  liabilit}'  of  the  carrier 
at  common  law  continues  daring  the  transportation  over  the  entire 
route  or  distance  over  which  he  has  agreed  to  carr}^  the  propert}'  in- 
trusted to  him.  And  there  is  no  good  reason  for  making  any  distinc- 
tion in  the  nature  and  extent  of  this  liability  attaching  to  carriers,  as 
between  those  who  undertake  to  transport  property  by  the  use  of  the 
modern  methods  of  conveyance,  and  those  who  performed  a  like  ser- 
vice in  the  modes  formerly  in  use.  If  a  person  assumes  to  do  the  busi- 
ness of  a  common  carrier,  he  can,  if  he  sees  fit,  confine  it  within  such 
limits  that  it  ma}'  be  done  under  his  personal  care  and  supervision  or 
by  agents  whom  he  can  select  and  control.  But  if  he  undertakes  to 
extend  it  further,  he  must  either  restrict  his  liabilit}'  by  a  special  con- 
tract or  bear  the  responsibility  which  the  law  affixes  to  the  species  of 
contract  into  which  he  voluntarily  enters.    There  is  certainly  no  hardship 


FERGUSON  V.   METROPOLITAN  GAS  LIGHT  CO.        137 

in  this,  because  lie  is  bound  to  take  no  greater  risk  than  that  wliich  is 
imposed  b}-  law  on  those  whom  he  employs  as  his  agents  to  fulfil  the 
contracts  into  which  he  has  entered.^ 

Exceptions  overruled. 


FERGUSON  V.  THE  METROPOLITAN   GAS   LIGHT 
COMPANY. 

New  York  Common  Pleas,  1868. 

[37  How.  Pr.  189.] 

3y  the  court,  Brady,  J.  The  plaintiff  occupied  one  floor  of  a  dwell- 
ing or  tenement  house  in  this  cit}-.  The  owner  had  put  in  it  the  service 
pipes  for  gas,  according  to  the  regulations  of  the  defendants.  He 
applied  for  gas  which  was  supplied  through  one  meter,  placed  in  the 
cellar  of  the  house.  He  also  applied  for  separate  meters  for  each  floor, 
which  were  not  furnished  by  the  defendants,  and  it  would  seem  because 
he  had  not  put  into  the  house  separate  or  independent  service  pipes  for 
each  floor  to  which  the  meter  might  be  connected. 

It  does  not  appear  that  this  application  being  refused,  he  took  any 
steps  to  enforce  his  demand. 

It  is  conceded  that  the  pipes  in  the  house  were  sufficient  to  serve  it 
with  gas,  and  that  gas  could  be  carried  to  all  parts  of  it  through  them. 

The  plaintiff"  when  he  became  an  occupant  also  applied  for  gas,  and 
the  defendants  answered  by  saying  that  the}-  had  already  furnished  it  to 
the  building,  and  refused  to  place  a  meter  on  the  plaintifl"s  floor  unless 
separate  and  independent  service  pipes  were  provided.  The  plaintiff"s 
application  was  not  in  fact  alone  for  gas,  but  for  a  separate  meter  as 
well.  He  wanted  the  meter,  as  he  stated  on  the  trial,  and  the  question 
reall}'  involved  in  this  controversy  is,  whether  the  defendants  were 
bound  to  furnish  it. 

The  plaintiff"  sues  for  a  penalty  under  the  sixth  section  of  the  act  of 
1859  (Laws,  p.  698),  which  provides  that  all  gas  companies  shall  supply 
gas  to  the  owner  or  occupant  of  any  building  or  premises,  which  may 
be  required  for  lighting  it  or  them,  upon  a  written  application  therefor 
to  be  signed  by  him.  It  also  provides,  that  if  for  the  space  of  ten  days 
after  such  application,  and  the  deposit  of  a  reasonable  sum,  as  in 
the  act  provided  (if  required),  the  compan}'  shall  refuse  or  neglect  to 
supply  gas,  the}'  shall  pa}'  to  the  applicant  the  sum  of  ten  dollars  and 
five  dollars  for  ever}'  day  thereafter  during  which  such  neglect  or  re- 
fusal shall  continue. 

It  will  be  observed  that  there  is  no  qualification  on  the  obligation 

1  Compare  :  Express  Co.  v.  Cook,  44  Ala.  468  ;  Express  Co.  v.  Newby,  36  Ga.  635  ; 
Christensou  y.  Express  Co.,  15  Minn.  270;  Express  Co.  v.  Backman,  28  Oh.  St.  144. 
—  Ed. 


138  FERGUSON   V.   METliOPOLITAN    GAS    LIGHT   CO. 

imposed  by  the  statute.  The  gas  must  be  furnished  or  a  penalty  is 
incurred,  which  continues  from  day  to  day,  as  long  as  the  refusal  or 
neglect  to  supply  it  is  continued.  It  will  also  be  observed  that  the 
section  referred  to  does  not  either  directly  or  indirectly  require  the 
company  to  furnish  a  meter,  either  to  the  owner  or  occupant,  for 
the  whole  or  any  part  of  the  premises,  and  the  act  is  equally  silent  as 
to  the  mode  by  which  the  gas  shall  be  conveyed  through  the  houses. 

The  plaintiff  seeks  the  enforcement  of  a  penalty,  and  whether  the 
statute  be  regarded  as  penal  or  remedial,  and  one  either  to  be  strictly 
or  liberally  construed,  his  claim  is  not  within  its  purview.  Assuming 
that  he  is  the  occupant  of  premises  within  the  meaning  of  the  statute, 
which  may  well  be  questioned,  and  that  he  had  the  right  to  apply  for 
gas,  the  answer  to  his  demand  is,  that  gas  was  supplied  through  the 
pipes  provided  by  his  landlord,  which  he  could  use  if  he  chose  to  do  so, 
and  the  response  disposes  of  his  claim.  The  owner  of  the  building  liad 
exhausted  the  power  to  compel  the  defendants  to  furnish  gas,  under 
section  six  of  the  act  referi-ed  to.  They  had  granted  his  application 
for  it,  although  they  had  declined  to  furnish  separate  meters,  a  neglect 
or  refusal  of  which  to  him  he  alone  could  take  advantage  of.  The  gas 
having  been  thus  furnished,  no  penalty  was  incurred  by  them,  unless 
the  omission  to  suppl}'  a  meter  to  the  plaintiff  is  fairly  within  the  appli- 
cation for  gas  and  included  in  it. 

This  cannot  be.  The  meter  is  employed  for  the  benefit  not  of  the 
consumer  but  the  company',  and  cannot  be  used  without  tests  which  the 
former  may  insist  shall  be  applied  (§  5).  If  the  company  prefer,  they 
ma}'  supply  the  gas  without  it,  for  aught  that  appears  in  this  case. 
The  statute  does  not  require  them  to  furnish  it,  and  that  in  itself  may 
be  sufficient  to  dispose  of  this  case.  If  the  statute  be  strictl}-  con- 
strued, the  defendants  are  not  liable,  because  they  have  furnished  gas 
to  the  building  which  includes  the  premises  occupied  b}'  the  plaintiff, 
and  which  only  they  were  bound  to  furnish,  and  if  it  be  liberall}*  en- 
forced, then  the  defendants  should  not  be  obliged  to  provide  an  article 
which  is  not  required  by  the  letter  of  the  law,  nor  necessar}'  to  the 
plaintiff  for  the  enjoyment  of  the  light  which  he  desires,  nor  should 
such  a  construction  create  a  duty  which  under  its  provisions  is  not 
declared. 

It  must  be  said  in  addition,  that  if  it  were  otherwise  considered, 
that  the  defendants  should  not  be  prohibited  from  adopting  reasonable 
rules  with  reference  to  the  introduction  of  gas,  protective  of  their  own 
interests. 

They  proved  on  the  trial,  that  it  was  not  customary  to  put  in  sepa- 
rate meters  such  as  demanded  bj-  the  plaintiff,  without  separate  service 
pipes,  and  that  they  were  necessary  to  prevent  "  tapping,"  which  would 
result  in  a  fraud  upon  their  rights.  The  legislature  has  by  various 
provisions  in  the  act  of  1859  sought  to  guard  them  against  fraud  and 
theft,  and  has  taken  the  lead  in  anticipating  violations  of  fair  dealing, 
against  which  corporations  as  well  as  natural  persons  are  guaranteed 


LAWKENCE   V.   PULLMAN   PALACE   CAR   CO.  139 

under  our  laws,  the  right  to  protect  themselves,  even  in  the  discharge 
of  duties  imposed  upon  them. 

For  these  reasons  the  judgment  should  be  reversed. 


LAWRENCE   v.   PULLMAN   PALACE   CAR  CO. 
Supreme  Court  of  Massachusetts,  1887. 

[144  Mass.  1.1] 

Devexs,  J.  The  gist  of  the  plaintiff's  claim  is  that  he  was  wrong- 
full}-  refused  accommodation  in  the  sleeping  car  of  the  defendant,  in 
coming  from  Baltimore  to  New  York,  by  tlie  defendant's  servants  ; 
and  that,  on  declining  to  leave  the  car,  he  was  ejected  therefrom.  His 
argument  assumes  that  it  was  for  the  defendant  to  determine  under 
what  circumstances  a  passenger  should  be  allowed  to  purchase  a  berth, 
and,  incidental!}',  the  other  accommodations  afforded  by  the  sleeping 
car.  An  examination  of  the  contract  with  the  Pennsylvania  Railroad 
Company,  b}'  virtue  of  which  the  cars  owned  b}'  the  defendant  were 
conve\'ed  over  its  railroad,  sliows  that,  wliile  these  cars  were  to  be  fur- 
nished by  the  defendant  corporation,  they  were  so  furnished  to  be  used 
by  the  railroad  compau}'  "  for  the  transportation  of  passengers  ;  "  that 
its  employees  were  to  be  governed  by  tlie  rules  and  regulations  of  the 
railroad  compan}',  such  as  it  might  adopt,  from  time  to  lime,  for  the 
government  of  its  own  employees.  While,  therefore,  the  defendant 
company  was  to  collect  the  fares  for  the  accommodations  furnished  b}' 
its  cars,  Ivcep  them  in  proper  order,  and  attend  upon  the  passengers,  it 
was  for  the  railroad  company  to  determine  who  should  be  entitled  to 
enjoy  the  accommodations  of  these  cars,  and  bv  what  regulation  this  use 
of  the  cars  should  be  governed.  The  defendant  compan}-  could  not 
Qortainly  furnish  a  berth  in  its  cars  until  the  person  requesting  it  had 
become  entitled  to  transportation  b}'  the  railroad  compau}-  as  a  passen- 
ger, and  he  must  also  be  entitled  to  the  transportation  for  such  routes, 
distances,  or  under  such  circumstances,  as  the  railroad  compan}'  should 
determine  to  be  those  under  which  the  defendant  compan}'  would  be 
authorized  to  furnish  him  with  its  accommodations.  The  defendant 
company  could  only  contract  with  a  passenger  when  he  was  of  such  a 
class  that  the  railroad  company  permitted  the  contract  to  be  made. 

The  railroad  company  had  classified  its  trains,  fixing  the  terms  upon 
which  persons  should  become  entitled  to  transportation  in  the  sleeping 
cars,  and  the  cars  in  which  such  transportation  would  be  afforded.  It 
was  its  regulation  that,  between  Baltimore  and  New  York,  this  accom- 
modation should  only  be  furnished  to  those  holding  a  ticket  over  the 
whole  route.     It  does  not  appear  that  this  was  an  unreasonable  rule, 

1  This  case  is  abridged.  —  Ed. 


140  LAWKEXCE    V.    PULLMAN    PALACE    CAll   CO. 

but,  whether  it  was  so  or  not,  it  was  the  regulation  of  the  raih'oad  com- 
pany, and  not  of  the  defendant.  The  evidence  was,  "that  the  ordinary 
train  conductors  of  the  Pennsylvania  Railroad  Company  have  full  and 
entire  authoritj'  over  the  porters  and  conductors  of  the  Pullman  cars,  in 
regard  to  the  matter  of  determining  who  shall  ride  in  the  cars,  and  under 
what  circumstances,  and  in  regard  to  ever}'  other  thing,  except "  the 
details  of  care,  &c.  The  defendant's  servant,  the  plaintiff  having  en- 
tered the  sleeping  car,  informed  him  that  his  "  split  tickets,"  as  they 
are  termed,  were  not  such  as  would  entitle  him  to  purchase  a  berth, 
and  that  he  could  sell  only  to  those  holding  "  through  passage  tickets, 
intact,  to  the  point  to  which  sleeping  accommodations  were  desired." 
The  plaintiff  was  in  no  wa}-  disturbed  until  the  train  conductor  (who 
was  not  the  defendant's  servant)  came  into  the  car,  informed  the  plain- 
tiff that  his  tickets  were  not  such  as  to  entitle,  him  to  purchase  the 
sleeping-car  ticket,  and  several  times  urged  the  plaintiff  to  leave  the 
sleeping  car,  which  the  plaintiff  refused  to  do.  Whether  accommoda- 
tion was  righth'  refused  to  the  plaintiff  or  not  in  the  sleeping  car,  the 
refusal  was  the  act  of  the  railroad  company's  servant,  and  not  of  the 
defendant's,  whose  duty  it  was  to  be  guided  by  the  train  conductor. 

The  ejection  of  the  plaintiff  was  also  the  act  of  the  railroad  companj', 
and  not  of  the  defendant.  It  is  the  contention  of  the  plaintiff,  that, 
even  if  he  might  be  ejected  from  the  car,  it  was  done  in  an  improper 
manner.  The  plaintiff  testified  that  he  was  waiting  for  a  "sliow  of 
force,"  after  his  repeated  refusals  to  leave  the  car.  This  exhibition  of 
force  was  made  by  the  train  conductor,  who  put  his  hand  upon  him, 
when  the  plaintiff  rose  and  3'ielded  thereto.  The  defendant's  conductor 
took  hold  of  the  plaintiff's  arm  when  he  rose,  and  aided  the  plaintiff  in 
crossing  the  platform  of  the  cars,  but  the  evidence  does  not  show  that 
he  used  or  exercised  any  force  whatever.  Even  if  he  had  used  force 
upon  the  plaintiff,  he  was  not  doing  the  business  of  the  defendant  com- 
pany ;  he  was  assisting  the  train  conductor  in  the  duty  he  was  perform- 
ing as  servant  of  the  railroad  compan}'.  To  conduct  him  across  from 
one  car  to  another  in  the  manner  described  by  the  plaintiff  himself,  after 
he  had  repeatedl}'  refused  to  leave  the  car,  affords  no  evidence  of  any 
removal  in  an  improper  manner.  The  act  of  the  defendant's  servant 
was  in  every  way  calculated  to  assist  the  plaintiff  in  his  transit  from 
one  car  to  another. 

Nor  is  the  fact  important  that  the  car  into  which  the  plaintiff  was 
passed  subsequently  becanae  cold,  even  if  it  were  possible  to  hold  the 
defendant  responsible  for  the  act  of  its  servant.  So  far  as  appears  b^' 
the  evidence,  there  is  no  reason  to  believe  that,  when  the  plaintiff  en- 
tered the  car,  it  was  not  in  fit  condition  to  receive  passengers  ;  and,  by 
the  contract,  the  management  of  it  and  the  duty  of  furnishing  fuel  were 
entirely  with  the  railroad  company,  and  not  with  the  defendant. 

Jadgtneiit  on  the  verdict} 

1  Lemon  v.  Palace  Car  Co.,  52  Fed.  262;  Neviii  v.  Palace  Car  Co.,  106  111.  226; 
Williams  v.  Palace  Car  Co.,  40  La.  Auu.  417.  —  Ed. 


PEOPLE   V.    MANHATTAN    GAS    LIGHT    CO.  141 

THE  PEOPLE  V.   MANHATTAN   GAS   LIGHT   CO. 

Supreme  Court  of  New  York,  1865. 

[45  Barb.  136.] 

Appeal  from  an  order  nifide  at  a  special  tei-m,  denying  an  application 
for  a  mandamus  commanding  tlie  defendants  to  supply  the  plaintiff  witli 
gas,  at  his  house,  No.  121  West  Sixteenth  Street,  New  York. 

By  the  courts  Ingraham,  P.  J.  I  think  there  can  be  no  doubt 
about  the  authority  of  this  court  to  direct  the  respondents  to  furnisli 
gas  to  persons  who,  under  the  provisions  of  their  charter,  have  a  riglit 
to  receive  it  and  who  offer  to  comply  with  the  general  conditions  on 
which  the  company  supply  others. 

They  possess,  by  virtue  of  their  charter,  powers  and  privileges  which 
others  cannot  exercise,  and  the  statutory  duty  is  imposed  upon  them 
to  furnish  gas  on  paN'ment  of  all  money's  due  by  such  applicants. 

We  are  left  then  to  inquire  whetiier  tlie  relator  was  in  a  condition  to 
demand  from  the  company  this  supply.  It  appears  by  the  papers  used 
on  the  motion  that  the  relator  commenced  taking  gas  in  1858,  at  No.  61 
in  Seventh  Avenue,  and  was  supplied  with  gas  b}-  the  corapan}-,  until 
28th  of  December,  1861.  That  he  paid  for  the  gas  so  received  up  to 
19th  of  August,  1861,  and  that  for  gas  furnished  after  that  date  he  has 
not  paid.  It  also  appears  that  in  Januar}-,  1865,  the  respondent  sued 
the  relator  and  obtained  a  judgment  against  him  for  the  amount  due 
therefor,  which  still  remains  unpaid.  In  May,  1864,  the  relator  applied 
to  the  compan}'  for  gas  at  121  West  Sixteenth  Street,  which  was  fur- 
nished to  him  b}'  the  company,  without  objection  on  account  of  the 
former  indebtedness,  until  9th  of  Februar}',  1865,  when  the  company 
shut  off  the  supply  of  gas  and  refused  to  furnish  any  more.  It  also  ap- 
pears that  the  relator  in  answer  to  a  claim  for  paj'ment  of  this  indebted- 
ness, represents  himself  as  insolvent  and  unable  to  pay  the  judgment. 

There  is  nothing  in  the  charter  of  the  company  which  requires  them 
to  make  the  objection  that  the  applicant  was  indebted  to  them  at  the 
time  of  the  first  application.  It  would  be  unreasonable  to  suppose  that 
in  ever}'  instance  the}"  could  ascertain  such  indebtedness.  If  at  any 
time  the  party  is  so  indebted,  the  company  ma}'  refuse  to  furnish,  and 
more  especially  should  this  be  so  when  the  relator  avows  his  insolvency 
and  his  inability  to  pay  for  gas  furnished  previously. 

The  attempted  denial  of  liability  for  this  bill,  by  the  relator,  will  not 
aid  iiim.  The  company  have  obtained  a  judgment  against  him.  This 
is  not  disputed,  and  no  attempt  is  made  by  him  to  set  it  aside.  So  long 
as  tliat  remains  in  force  it  is  conclusive  against  him. 

The  order  appealed  from  should  be  affirmed,  with  $10  costs.^ 

1  Compare:  Montreal  Gas  Co.  v.  Cadieux,  1899,  A.  C.  589;  Shiras  v.  Ewing,  48 
Kans.  170;  Gas  Co.  v.  Storage  Co.,  Ill  Mich.  401  ;  Mc Daniel  v.  Waterworks,  48  Mo. 
273;  Turner  v.  Water  Co.,  171  Mass.  330;  Ins.  Co.  v.  Philadelphia,  88  Pa.  St.  393; 
Hotel  Co.  V.  Light  Co.,  3  Wash  316.  — Ed. 


142  STATE  V.   NEBKASKA   TELEPHONE   CO. 


STATE  V.   NEBRASKA  TELEPHONE  CO. 

Supreme  Court  of  Nebraska,  1885. 

[17  Neb.  126.1] 

Reese,  J.  This  is  an  original  application  for  a  mandarmts  to  compel 
the  respondent  to  place  and  maintain  in  the  office  of  the  relator  a  tele- 
phone and  transmitter,  such  as  are  usually  furnished  to  the  subscribers 
of  tlie  respondent.  The  respondent  has  refused  to  furnish  the  instru- 
ments, and  presents  several  excuses  and  reasons  for  its  refusal,  some 
of  which  we  will  briefly  notice. 

It  appears  that  during  the  year  1883  the  respondent  placed  an  instru- 
ment in  the  office  of  the  relator,  but  for  some  reason  failed  to  furnish 
the  relator  with  a  directory  or  list  of  its  subscribers  in  Lincoln  and 
various  other  cities  and  villages  within  its  cii'cuit,  and  which  directory 
the  relator  claimed  was  essential  to  the  profitable  use  of  the  telephone, 
and  which  it  was  the  custom  of  respondent  to  furnish  to  its  subscribers. 
Finally,  the  directory  was  furnished,  but  upon  pa^'-da}'  the  relator  re- 
fused to  pa}'  for  the  use  of  the  telephone  during  the  time  the  respondent 
was  in  default  with  the  director}'.  Neither  party  being  willing  to  yield, 
the  instruments  were  removed.  Soon  afterwards  the  relator  applied 
to  the  agent  of  the  respondent  and  requested  to  become  a  subscriber 
and  to  have  an  instrument  placed  in  his  place  of  business,  which  the 
respondent  refused  to  do.  It  is  insisted  that  the  conduct  of  the  relator 
now  relieves  respondent  from  an}'  obligation  to  furnish  the  telephone 
even  if  such  obligation  would  otherwise  exist. 

We  cannot  see  that  the  relations  of  the  parties  to  each  other  can 
have  any  influence  upon  their  rights  and  obligations  in  this  action.  If 
relator  is  indebted  to  respondent  for  the  use  of  its  telephone  the  law 
gives  it  an  adequate  remedy  by  an  action  for  the  amount  due.  If  the 
telephone  has  become  such  a  public  servant  as  to  be  subject  to  the  proc- 
ess of  the  courts  in  compelling  it  to  discharge  public  duties,  the  mere 
fact  of  a  misunderstanding  with  those  who  desire  to  receive  its  public 
benefits,  will  not  alone  relieve  it  from  the  discharge  of  those  duties. 
"While  either,  or  perhaps  both,  of  the  parties  may  have  been  in  the 
wrong  so  far  as  the  past  is  concerned,  we  fail  to  perceive  how  it  can 
affect  the  rights  of  the  parties  to  this  action. 

Tlie  pleadings  and  proofs  show  that  the  relator  is  an  attorney-at-law 
in  Lincoln,  Nebraska.  That  he  is  somewhat  extensively  engaged  in 
the  business  of  his  profession,  which  extends  to  Lincoln  and  Omaha, 
and  surrounding  cities  and  county  seats,  including  quite  a  number  of 
the  jM'incipal  towns  in  southeastern  Nebraska.  That  this  territory  is 
occupied  by  respondent  exclusively,  together  with  a  large  portion  of 

^  This  opiuiou  is  abridged.  —  Ed. 


STATE    V.    NEBRASKA   TELEPHONE   CO.  143 

southwestern  Iowa,  including  in  all  about  fifteen    hundred  different 
instruments. 

By  the  tcstimon3-of  one  of  the  principal  witnesses  for  respondent  we 
learn  that  the  company  is  incorporated  for  the  purpose  of  furnishing 
individual  subscribers  telephone  connection  with  each  other  under  the 
patents  owned  by  the  American  Telephone  Company;  instruments  to 
be  furnished  by  said  company  and  sublet  by  the  Nebraska  Telephone 
Company  to  tlie  subscribers  to  it.  This  is  clearly  the  purpose  of  the 
organization.  While  it  is  true,  as  claimed  by  respondent,  that  it  has 
been  organized  under  the  general  corporation  laws  of  the  State,  and  in 
some  matters  has  no  higher  or  greater  right  than  an  ordinary  corpora- 
tion, yet  it  is  also  true  that  it  has  assumed  to  act  in  a  capacity  which  is 
to  a  great  extent  public,  and  has,  in  the  large  territory-  covered  by  it, 
undertaken  to  satisfy  a  public  want  or  necessity.  This  public  demand 
can  onl}'  be  supplied  by  complying  with  the  necessity  which  has  sprung 
into  existence  b}'  the  introduction  of  the  instrument  known  as  the  tele- 
phone, and  which  new  demand  or  necessitj"  in  commerce  the  respondent 
proposes  satisfj'ing.  It  is  also  true  that  the  respondent  is  not  possessed 
of  any  special  privileges  under  the  statutes  of  the  State,  and  that  it  is 
not  under  quite  so  heavy  obligations,  legall}-,  to  the  public  as  it  would 
be,  had  it  been  favored  in  that  way,  but  we  fail  to  see  just  how  that  fact 
relieves  it.  While  there  is  no  law  giving  it  a  monopoly  of  the  business 
in  the  territor\-  covered  by  its  wires,  j'et  it  must  be  apparent  to  all  that 
the  mere  fact  of  this  territor}-  being  covered  by  the  "plant"  of  re- 
spondent, from  the  ver}'  nature  and  character  of  its  business  gives  it  a 
monopoly  of  the  business  which  it  transacts.  No  two  companies  will 
trv  to  cover  this  same  territor}-.  The  demands  of  the  commerce  of  the 
present  day  makes  the  telephone  a  necessitv.  All  the  people  upon 
complying  with  the  reasonable  rules  and  demands  of  the  owners  of  the 
commodity  —  patented  as  it  is  —  should  have  the  benefits  of  this  new 
commerce.  The  wires  of  respondent  pass  the  office  of  the  relator.  Its 
posts  are  planted  in  the  street  in  front  of  his  door.  In  the  very  nature 
of  things  no  other  wires  or  posts  will  be  placed  there  while  those  of 
respondent  remain.  The  relator  never  can  be  supplied  with  this  new 
element  of  commerce  so  necessary'  in  the  prosecution  of  all  kinds  of 
business,  unless  supplied  b}'  the  respondent.  He  has  tendered  to  it  all 
the  mone}'  required  by  it  from  its  other  subscribers  in  Lincoln  for  put- 
ting in  an  instrument.  He  has  proven,  and  it  is  conceded  by  respond- 
ent, that  he  is  able,  financially,  to  meet  all  the  payments  which  may 
become  due  in  the  future.  It  is  shown  that  his  office  can  be  supplied 
with  less  expense  and  trouble  to  respondent  than  man}-  others  which 
are  furnished  by  it.  No  reason  can  be  assigned  why  respondent  should 
not  furnish  the  required  instruments,  except  that  it  does  not  want  to. 
There  could,  and  doubtless  does,  exist  in  man}-  cases  sufficient  reason 
for  failing  to  complj'  with  such  a  demand,  but  they  are  not  shown  to 
exist  in  this  case.  It  is  shown  to  be  essential  to  the  business  interests 
of  relator  that  his  office  be  furnished  with  a  telephone.     The  value  of 


144  STATE    V.    NEBRASKA   TELEPHONE    CO. 

such  propert}'  is,  of  course,  conceded  by  respondent,  but  b}"  its  attitude 
it  says  it  will  destroy  those  interests  and  give  to  some  one  in  the  same 
business,  who  may  have  been  more  friendly,  this  advantage  over  him. 

It  is  said  by  respondent  that  it  has  public  telephone  stations  in  Lin- 
coln, some  of  which  are  near  relator's  office,  and  that  he  is  entitled  to 
and  may  use  such  telephone  to  its  full  extent  b}'  coming  there.  That, 
like  the  telegraph,  it  is  bound  to  send  the  messages  of  relator,  but  it 
can  as  well  do  it  from  these  public  stations,  that  it  is  willing  to  do  so, 
and  that  is  all  that  can  be  required  of  it.  Were  it  true  that  respondent 
had  not  undertaken  to  supply  a  public  demand  beyond  that  undertaken 
by  the  telegraph,  then  its  obligations  would  extend  no  further.  But  as 
the  telegraph  has  undertaken  to  the  public  to  send  despatches  from  its 
offices,  so  the  telephone  has  undertaken  with  the  public  to  send  mes- 
sages from  its  instruments,  one  of  which  it  proposes  to  supply  to  each 
person  or  interest  requiring  it,  if  conditions  are  reasonably  favoralile. 
This  is  the  basis  upon  which  it  proposes  to  operate  the  demand  which 
it  proposes  to  supply.    It  has  so  assumed  and  undertaken  to  the  public. 

That  the  telephone,  by  the  necessities  of  commerce  and  public  use, 
has  become  a  public  servant,  a  factor  in  the  commerce  of  the  nation 
and  of  a  great  portion  of  the  civilized  world,  cannot  be  questioned.  It 
is  to  all  intents  and  purposes  a  part  of  the  telegraphic  system  of  the 
countr}-,  and  in  so  far  as  it  has  been  introduced  for  public  use  and  has 
been  undertaken  bj*  the  respondent,  so  far  should  the  respondent  be 
held  to  the  same  obligation  as  the  telegraph  and  other  public  servants. 
It  has  assumed  the  responsil)ilities  of  a  common  carrier  of  news.  Its 
wires  and  poles  line  our  public  streets  and  thoroughfares.  It  has,  and 
must  be  held  to  have  taken  its  place  bj-  the  side  of  the  telegraph  as 
such  common  carrier. 

The  views  herein  expressed  are  not  new.  Similar  questions  have 
arisen  in,  and  have  l)een  frequently  discussed  and  decided  In-,  the  courts, 
and  no  statute  has  been  deemed  necessar}'  to  aid  the  courts  in  holding 
that  when  a  person  or  compan}-  undertakes  to  supply  a  demand  wliich 
is  "affected  with  a  public  interest,"  it  must  supply  all  alike  who  are 
like  situated,  and  not  discriminate  in  favor  of,  nor  against  any.  This 
reasoning  is  not  met  b}-  saying  that  the  rules  laid  down  by  the  courts 
as  applicable  to  railroads,  express  companies,  telegraphs,  and  other 
older  servants  of  the  public,  do  not  apply  to  telephones,  for  the  reason 
that  they  are  of  recent  invention  and  were  not  thought  of  at  the  time 
the  decisions  were  made,  and  hence  are  not  affected  by  them,  and  can 
only  be  reached  by  legislation.  The  principles  established  and  declared 
by  the  courts,  and  which  were  and  are  demanded  by  the  highest  mate- 
rial interests  of  the  countr}',  are  not  confined  to  the  instrumentalities  of 
commerce  nor  to  the  particular  kinds  of  service  known  or  in  use  at  the 
time  when  those  principles  were  enunciated,  "but  they  keep  pace  with 
the  progress  of  the  countr}-  and  adapt  themselves  to  the  new  develop- 
ments of  time  and  circumstances.  They  extend  from  the  horse  with  its 
rider  to  the  stage  coach,  from  the  sailing  vessel  to  the  steamboat,  from 


STATE    V.    CAMPBELL.  145 

the  coach  and  the  steamboat  to  the  raih-oad,  and  from  the  raih'oad  to 
the  telegraph,"  and  from  the  telegraph  to  the  telephone;  "as  these 
new  agencies  are  successively  brought  into  use  to  meet  the  demands  of 
increasing  population  and  wealth.  They  were  intended  for  the  govern- 
ment of  the  business  to  which  they  relate,  at  all  times  and  under  all 
circumstances." 

A  peremptory  writ  of  mandamus  must  be  awarded.^ 


STATE  V.  CAMPBELL. 
Supreme  Court  of  New  Jersey,  1867. 

[32  N.  J.  Law,  309.2] 

The  Chief  Justice.  ...  To  make  intelligible  the  application  of  the 
law  to  the  case,  the  circumstances  must  be  understood.  They  were 
these  :  the  passenger  who  was  expelled  had  purchased,  at  the  depot 
in  New  York,  this  ticket,  which  he  produced  and  showed,  for  the  first 
time,  on  the  platform  at  the  station  at  Newark.  At  the  time  that  he 
provided  himself  with  it,  he  expected  to  have  trouble  with  the  conduc- 
tor, as  it  was  then  his  intention  to  insist  on  his  right  to  use  the  return 
ticket,  which  was  spent.  Being  called  on  by  the  conductor,  on  two 
several  occasions,  to  show  his  ticket,  he  produced  the  spent  one,  keep- 
ing the  other  out  of  view,  so  that  the  conductor  was  not  aware  of  its 
possession  by  him,  wliile  he  remained  in  the  cars.  Having  arrived 
at  the  Newark  station,  he  was  informed  he  must  pay  his  fare  or  leave 
the  cars.  He  refused  to  do  either  act.  The  conductor  then  declared 
his  intention  to  dela}'  the  train  until  the  passenger  paid  his  fare  or  left 
the  cars,  and  accordingly  he  sent  back  a  flag,  to  warn  a  train  that  was 
nearh'  due  at  Newark.  This  produced  excitement ;  and  when  the 
employees  of  the  company  were  called  in,  the  acquaintances  of  the  rec- 
reant passenger  collected  around  him  and  endeavored  to  prevent  his 
being  put  out.  The  passenger  himself  resisted  b}'  clinging  to  the 
seats.  After  a  delay  of  twelve  minutes  he  was  ejected.  During  this 
time  the  other  train,  which  had  been  warned  of  the  danger,  arrived. 

It  is  presumed  that  no  person  will  deny  that  here  was  a  transaction 
which,  if  often  repeated,  would  deprive  railroad  travel  of  some  of  its 
security  and  much  of  its  comfort.  Tlie  annoj-ance  and  danger  to  be 
apprehended  from  such  an  affair,  are  too  obvious  to  need  exposition. 
It  is  clear,  therefore,  that  some  person  was  to  blame.  That  person  was 
certainly  not  the  company  or  its  agents.     The  company',  through  its 

1  Compare :  Smith  v.  Water  Works,  104  Ala.  315  ;  Crow  v.  Irrigation  Co.,  130  Cal. 
311 ;  Lloyd  v.  Gas  Co.,  1  Macke.v,  131  ;  Gas  Co.  v.  Calliday,  25  Md.^  ;  Bank  v.  Lowell, 
152  Mass.  556;  Wood  v.  Auburn,  87  Me.  287;  Water  Works  v.  State,  46  Neb.  194; 
Crumley  v.  Water  Co.,  99  Teun.  420. — Ed. 

■•^  This  opinion  is  abridged.  —  Ed. 

10 


146  STATE    V.   CAMPBELL. 

agents,  simpl}'  enforced  a  plain  legal  right  in  a  legal  mode.  The  whole 
fault  must  be  laid  to  the  passenger  ;  and  the  only  question  which  can 
possibh'  arise  is,  whether  his  conduct  was  such  as  to  justif}'  the  con- 
ductor in  refusing  him  re-admission  into  the  cars.  The  proposition  is 
simply  this  :  if  a  passenger  refuses  to  show  liis  ticket  on  a  legal  de- 
mand made,  and  refuses  to  leave  the  cars  on  request,  and  is  put  out, 
after  resistance,  has  he,  as  a  matter  of  law,  the  privilege  to  return  to 
the  cars  upon  the  production,  at  this  stage  of  the  occurrence,  of  his 
ticket?  This  proposition  must  be  answered  in  the  affirmative,  in  order, 
in  this  case,  to  hold  that  the  defendant  was  guilty  of  a  wrong.  In  my 
opinion,  such  a  doctrine  is  not  consistent  with  either  law  or  good 
sense.  Its  establishment  would,  practically,  annul  the  power  of  a 
railroad  compan}'  to  require  passengers  to  show  their  tickets  ;  for  it  is 
obvious,  that  if  the  only  penalty  on  a  refractory  passenger  is  a  momen- 
tary expulsion,  he  will  be  enabled,  at  a  small  sacrifice,  by  repeated 
refusals,  to  compel  an  abandonment  of  the  demand  upon  him.  A 
passenger  takes  his  ticket  subject  to  the  reasonable  regulations  of  the 
company  ;  it  is  an  implied  condition  in  his  contract,  that  he  will  sub- 
mit to  such  regulations  ;  and  if  he  wilfulh'  refuses  to  be  bound  by 
them,  by  so  doing  he  repudiates  his  contract,  and  after  such  repudia- 
tion cannot  claim  any  right  under  it.  In  this  case,  the  passenger, 
with  full  knowledge  of  the  regulation  in  question,  refused  to  show  his 
ticket,  which  alone  gave  him  the  right  to  a  seat  in  the  cars.  The  ex- 
hibition of  the  spent  ticket  did  not  help  the  matter ;  he  stands,  there- 
fore, on  the  same  footing  as  any  other  passenger  who,  when  properly 
applied  to,  will  not  exhibit  the  evidence  of  his  rightful  presence  in  the 
car.  If  this  particular  passenger  had  the  legal  right  to  re-enter  the 
cars  after  his  tortious  refusal,  so,  on  all  similar  occasions,  will  all  other 
passengers  be  entitled  to  the  same  right.  "We  come  thus  to  the  result, 
that  railroad  passengers  ma}'  violate,  with  full  knowledge,  a  legal  reg- 
ulation of  a  company  in  whose  cars  they  are  carried  ;  the\-  may  resist, 
short  of  a  breach  of  the  peace,  all  attempts  to  expel  them;  the}^  rn'W? 
by  tins  means,  at  a  loss  to  the  compau}'  and  to  the  peril  of  the  public, 
disarrange  the  order  of  successive  trains  upon  the  road,  witli  regard  to 
each  other  ;  the}'  may  occasion  a  tumult  and  disorder  in  the  car  in 
which  they  may  happen  to  be  ;  and,  after  being  expelled,  they  may 
immediateh"  return  to  repeat,  if  so  inclined,  the  same  misconduct.  I 
must  think  it  requires  no  argument  to  show  that  such  a  license  to  do  evil 
as  this  does  not  exist.  The  defendant  was  entirel}-  justified  in  forming 
the  rational  conclusion,  that  the  passenger  in  question,  if  re-admitted 
into  the  cars,  would  again  misconduct  himself;  and,  under  such  circum- 
stances, it  was  his  duty  to  exclude  him. 

The  Court  of  Oyer  and  Terminer  should  be  advised  to  set  aside  the 
verdict.^ 

1  Compare:  Caroliii.a  R.  R.  v.  Nix,  68  Ga.  572;  Louisville  R.  R.  v.  Breckenriilfje, 
99  Ky.  1  ;  Obrien  v.  Boston  R.  R.,  15  Gray,  20;  Tease  v.  Delaware  R.  l\.,  101  N.  Y. 
367  ;  Texas  R.  R.  v.  James,  82  Tex.  306.  —  Ed. 


PENNINGTON    V.    PHILADELPHIA,   ETC.    KAILROAD.  147 


PENNINGTON   v.   PHILADELPHIA,    WILMINGTON   AND 
BALTIMORE   RAILROAD    CO. 

Supreme  Court  of  Maryland,  1883. 

[62  Md.  95.1] 

Bryan,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  purchased  from  a  ticket  agent  of  the  appellee  a  ticket 
of  which  the  following  is  a  copy. 


£0 

3    - 


Phila.  Wilm.  and  Balto.  R.  R. 

{One  Continuous  Passage.) 

Perry  man's   to   Baltijiore. 


K 

In  consideration  of  the  reduced  rate  at  which  the  ticket  is  sold,  it  is  agreed 
that  it  shall  be  used  witliin  three  days,  including  the  daj'  of  sale,  for  a  continu- 
ous trip  only,  and  by  such  trains  as  stop  regularly  at  the  station,  and  by  its 
acceptance  the  purchaser  becomes  a  party  to  and  binds  himself  to  a  compliance 
with  these  conditions. 

(1,723)  Geo.  A.  Dadmon, 

General  Ticket  Agent. 

On  the  back  of  the  above  ticket  is  the  following  stamp,  to  wit : 

Phila.  Wilm.  and  Balto.  R.  R. 


(  Fhila.  Uilm.  and  Balto.  K.  K.  \ 
I  Dec.  13,  1882.  |- 

(  Baltimore.  ) 


7  V.  62. 

He  proceeded  in  appellee's  cars  to  Perrj-man's  on  the  thirteenth  day 
of  December,  1881,  and  while  attempting  to  return  on  the  sixteenth 
day  of  December,  the  conductor  refused  to  receive  the  ticket  for  his 
passage  and  required  him  to  leave  the  cars.  The  controversy  depends 
upon  the  rights  acquired  by  the  purchase  of  the  ticket.  The  plaintiff, 
at  the  trial  below,  offered  to  prove  that  before  he  purchased  the  ticket, 
he  was  informed  by  the  agent,  upon  inquiry  from  him,  that  it  was 
"  good  until  used." 

We  think  that  the  plaintiff's  rights  in  this  regard  are  limited  by  the 
ticket.  There  is  no  evidence  in  the  record  that  the  ticket  agent  was 
authorized  to  make  any  contracts  for  the  railroad  company,  or  that  he 
liad  any  duties  beyond  the  sale  and  delivery  of  the  tickets.  The  ticket 
purchased  by  the  appellant  clearly  informed  him  that  he  would  have 
no  right  to  use  it  after  the  fifteenth,  and  the  agent  had  no  authority  to 
vary  its  terms. 

A  passenger  has  a  right  to  be  conveyed  in  the  cars  of  a  railroad 
company  without  making  any  special  contract  for  transportation. 
Upon  payment  of  the  usual  fare,  the  company  is  bound  to  convey  him, 
and  is  under  all  the  obligations  imposed  by  law  on  common  carriers,  so 
far  as  they  relate  to  the  transportation  of  him  tis  a  passenger.  It  is 
competent  to  vary  these  obligations  by  a  special  agreement,  on  valu- 
1  Opinion  only  is  printed.  —  Ed. 


14S  PENNINGTON   V.   PHILADELPHIA,    ETC.    KAILROAD. 

able  consideration,  between  the  passenger  and  the  company.  But  if 
the  passenger  chooses  to  do  so,  he  may  stand  on  his  legal  rights,  and 
elect  to  be  carried  to  his  destination  without  making  any  special  con- 
tract. Tlie  mere  purchase  of  a  ticket  does  not  constitute  a  contract. 
Before  the  ordinary  liability  of  the  railroad  compan}'  can  be  varied, 
there  must  be  a  consent  of  the  passenger,  founded  on  valuable  con- 
sideration. The  ticket  ordinarih'  is  only  a  token,  showing  that  the 
passenger  has  paid  his  fare.  But  where  the  ticket  is  sold  at  less  than 
the  usual  rates,  on  the  condition  that  it  shall  not  be  used  after  a  limited 
time,  if  the  passenger  accepts  and  uses  the  ticket,  he  makes  a  contract 
with  the  company  according  to  the  terms  stated,  and  the  reduction  in 
the  fare  is  the  consideration  for  his  contract.  It  is  true,  he  pays  his 
fare  before  he  receives  the  ticket,  but  if  he  has  been  misled  or  misin- 
formed b}-  the  seller  of  the  ticket,  as  to  its  terms,  he  has  a  right  to 
return  the  ticket  and  receive  back  his  money.  The  railroad  company 
agrees  to  carr}'  him  at  the  reduced  rate,  upon  the  conditions  stated  on 
the  face  of  his  ticket ;  if  he  agrees  to  those  terms  the  contract  is  con- 
summated ;  but  he  cannot  take  advantage  of  the  reduction  of  the  rate 
and  reject  the  terms  on  which  alone  the  reduction  was  made. 

In  this  case  the  plaintiff  made  the  journey  to  Ferryman's,  under  the 
terms  mentioned  in  the  ticket.  There  was  evidence  that  he  did  not 
read  the  ticket.  He  used  it  and  thereby  availed  himself  of  the  advan- 
tage conferred  by  the  diminished  rates.  He  had  an  ample  opportunity 
to  read  it  if  he  had  chosen  to  do  so.  He  could  not,  on  any  principle, 
hold  the  railroad  company  to  an^'  terms  except  those  stated.  If  there 
was  a  contract,  these  terms  were  embraced  in  it,  if  there  was  no  con- 
tract, he  had  no  right  to  the  reduction  in  the  fare.  After  availing 
himself  of  this  reduction,  it  was  too  late  for  him  to  allege  that  he  did 
not  know  on  what  terms  the  reduction  was  made  ;  when  he  had  an 
ample  opportunity  of  learning  them  from  the  ticket  in  his  possession. 

The  plaintiff  was  required  to  leave  the  cars  at  Back  River  Station, 
on  his  journey  back  to  Baltimore  from  Ferryman's.  After  he  had  left 
the  cars  and  while  on  the  platform  he  offered  to  pay  the  conductor  his 
fare  from  that  station  to  Baltimore,  but  the  conductor  refused  to  give 
him  admission  to  the  cars.  The  plaintiff  had  already  accomplished  a 
portion  of  the  return  journe}'  to  Baltimore  without  paying  his  fare. 
He  clearl}'  was  not  entitled  to  be  conveyed  from  Ferryman's  to  Balti- 
more without  paying  fare  for  the  whole  distance.  If  he  had  been  car- 
ried from  Back  River  Station  to  Baltimore,  on  payment  of  the  fare 
cnl}-  from  that  place,  he  would  have  escaped  payment  of  a  portion  of 
the  fare  :  and  so,  in  fact,  he  would  have  accomplished  the  return  trip 
at  a  reduced  rate.  The  company  was  under  no  oliligation  to  carry  him 
for  less  than  the  full  rate  for  the  whole  distance,  and  so  he  was  prop- 
erly excluded  from  the  cars.     The  judgment  must  be  affirmed. 

Judgment  affirmed} 

1  Compare:  Manning  v.  Louisville  R.  R.,  95  Ala.  392;  Stone  v.  Chicago  R.  R.,  47 
la.  82;  Davis  v.  Kansas  City  R.  R.,  53  Mo.  317;  Texas  Pacific  R.  R.  v.  Bond,  62 
Tex.  442.  —  Ed. 


McDUFFEE    V.    PORTLAND    &   EOCHESTER   RAILROAD.  149 

McDUFFEE  v.   PORTLAND  AND  ROCHESTER  RAILROAD. 

Supreme  Judicial  Court  of  New  Hampshire,  1873. 

[52  N.  H.  430.] 

Case,  by  Daniel  McDuffee  against  the  Portland  &  Rochester  Rail- 
road, for  not  furnishing  the  plaintiff  terms,  facilities,  and  accommoda- 
tions for  his  express  business  on  the  defendants'  road,  between  Rochester, 
N.  H.,  and  Portland,  Me.,  reasonably  equal  to  those  furnished  b}'  the 
defendants  to  the  Eastern  Express  Company. 

The  defendants  demurred  to  the  declaration.* 

Doe,  J.  I.  A  common  carrier  is  a  public  carrier.  He  engages  in  a 
public  employment,  takes  upon  himself  a  public  duty,  and  exercises  a 
sort  of  public  office.  Sandford  v.  R.  Co.,  24  Pa.  St.  378,  381  ;  N.  J. 
S.  N.  Co.  V.  Merchants'  Bank,  6  How.  344,  382  ;  Shelden  v.  Robinson, 
7  N.  H.  157,  163,  164  ;  Gray  v.  Jackson,  51  N.  H.  9,  10  ;  Ansell  v. 
Waterhouse,  2  Chitty,  1,  4;  HoUister  v.  Nowlen,  19  Wend.  234,  239. 
He  is  under  a  legal  obligation  :  others  have  a  corresponding  legal  right. 
His  duty  being  public,  the  correlative  right  is  public.  The  public  right 
is  a  common  right,  and  a  common  right  signifies  a  reasonably  equal 
rio^ht.  "  There  are  certain  cases  in  which,  if  individuals  dedicate  their 
personal  services,  or  the  temporary  use  of  their  propert}-,  to  the  public, 
the  law  will  impose  certain  duties  upon  them,  and  regulate  their  pro- 
ceedings to  a  certain  extent.  Thus,  a  common  carrier  is  bound  by 
law,  if  he  liave  conveniences  for  the  purpose,  to  carry  for  a  reasonable 
compensation."  Olcott  v.  Banfill,  4  N.  H.  537,  546.  '^  He  [the  com- 
mon carrier]  holds  a  sort  of  official  relation  to  the  public.  He  is 
bound  to  carry  at  reasonable  rates  such  commodities  as  are  in  his  line 
of  business,  for  all  persons  who  offer  them,  as  early  as  his  means  will 
allow.  He  cannot  refuse  to  carr}'  a  proper  article,  tendered  to  him  at 
a  suitable  time  and  place,  on  the  offer  of  the  usual  reasonable  compen- 
sation. Story  on  Bailments,  sec.  508;  Riley  v.  Home,  5  Bing.  217, 
224  ;  Bennett  v.  Dutton,  10  N.  H.  486.  "When  he  undertakes  the  busi- 
ness of  a  common  carrier,  he  assumes  this  relation  to  the  public,  and 
he  is  not  at  liberty  to  decline  the  duties  and  responsilulities  of  his 
place,  as  they  are  defined  and  fixed  by  law."  Moses  v.  B.  &  M.  R.  R., 
24  N.  H.  71,  88,  89.  On  this  ground  it  was  held,  in  that  case,  that 
a  common  carrier  could  not,  by  a  public  notice,  discharge  himself  from 
the  legal  responsibility  pertaining  to  his  office,  or  from  performing  his 
public  duty  in  the  way  and  on  the  terms  prescribed  by  law. 

"  The  very  definition  of  a  common  carrier  excludes  the  idea  of  the 
right  to  grant  monopolies,  or  to  give  special  and  unequal  preferences. 
It  implies  indifference  as  to  whom  they  may  serve,  and  an  equal  readi- 
ness to  serve  all  who  may  apply,  and  in  the  order  of  their  application." 
N.  E.  Express  Co.  v.  M.  C.  R.  R.  Co.,  57  Me.  188,  196.     A  common 

'  Arguments  of  counsel  are  omitted.  —  Ed. 


150  McDUFFEE   V.    PORTLAND    &    ROCHESTER   RAILROAD. 

carrier  of  passengers  cannot  exercise  an  unreasonable  discrimination  in 
carrying  one  and  refusing  to  carrj'  anotlier.  Bennett  v.  Button,  10  N.  H. 
481,  A  common  carrier  of  freight  cannot  exercise  an  unreasonable 
discrimination  in  carrj-ing  for  one  and  refusing  to  carr}'  for  another. 
He  ma}'  be  a  common  carrier  of  one  kind  of  property-,  and  not  of  an- 
other ;  but,  as  to  goods  of  which  he  is  a  common  carrier,  he  cannot 
discriminate  unreasonabl}'  against  any  individual  in  the  performance  of 
the  public  duty  which  he  assumed  when  he  engaged  in  the  occupation 
of  carrying  for  all.  His  service  would  not  be  public  if,  out  of  the  per- 
sons and  things  in  his  line  of  business,  he  could  arbitrarilj'  select  whom 
and  what  he  would  carr}'.  Such  a  power  of  arbitrary  selection  would 
destroy"  the  public  character  of  his  employment,  and  the  rights  which 
the  public  acquired  when  he  volunteered  in  the  public  service  of  common- 
carrier  transportation.  With  such  a  power,  he  would  be  a  carrier,  — 
a  special,  private  carrier,  —  but  not  a  common,  public  one.  From  the 
public  service  —  which  he  entered  of  his  own  accord  —  he  may  retire, 
ceasing  to  be  a  common  carrier,  with  or  without  the  public  consent, 
according  to  the  law  applicable  to  his  case  ;  but,  as  long  as  he  remains 
in  the  service,  he  must  perform  the  duties  appertaining  to  it.  The 
remedies  for  neglect  or  violation  of  dut}-  in  the  civil  service  of  the 
State  are  not  tlie  same  as  in  the  militar}'  service  ;  but  the  public  rights 
of  having  the  duties  of  each  performed  are  much  the  same,  and,  in 
the  department  now  under  consideration,  ample  remedies  are  not  want- 
ing. The  right  to  the  transportation  service  of  a  common  carrier  is  a 
common  as  well  as  a  public  right,  belonging  to  every  individual  as  well 
as  to  the  State.  A  right  of  conveyance,  unreasonably  and  injuriously 
preferred  and  exclusive,  and  made  so  by  a  special  contract  of  the  com- 
mon carrier,  is  not  the  common,  public  right,  but  a  violation  of  it. 
And  when  an  individual  is  specially  injured  b}'  such  a  violation  of  the 
common  right  which  he  is  entitled  to  enjo}',  he  may  have  redress  in  an 
action  at  common  law.  The  common  carrier  has  no  cause  to  complain 
of  his  legal  responsibility.  It  was  for  him  to  consider  as  well  the  duty 
as  the  profit  of  being  a  public  servant,  before  embarking  in  that  busi- 
ness. The  profit  could  not  be  considered  without  taking  the  duty  into 
account,  for  the  rightful  profit  is  the  balance  of  compensation  left  after 
paying  the  expenses  of  performing  the  dut}'.  And  he  knew  before- 
hand, or  ought  to  have  known,  that  if  no  profit  should  accrue,  the  per- 
formance of  the  dut}'  would  be  none  the  less  obligatory  until  he  should 
be  discharged  from  the  public  service.  Taylor  v.  Railway,  48  N.  H. 
304,  317.  The  chances  of  profit  and  loss  are  his  risks,  being  necessary 
incidents  of  his  adventure,  and  for  him  to  judge  of  before  devoting  his 
time,  labor,  care,  skill,  and  capital  to  the  service  of  the  country. , 
Profitable  or  unprofitable,  his  condition  is  that  of  one  held  to  service, 
having  by  his  own  act,  of  his  own  free  will,  submitted  himself  to  that 
condition,  and  not  having  liberated  himself,  nor  been  released,  from  it. 

A  common  carrier  cannot  directly  exercise  unreasonable  discrimina- 
tion as  to  whom  and  what  he  will  carry.     On  what  legal  ground  can 


McDUFFEE   V.   POKTLAND    &   KOCHESTER   EAILROAD.  I5l 

he  exercise  such  discrimination  indirectly?  He  cannot,  without  good 
reason,  while  carrying  A,  unconditionally  refuse  to  carrj'  B.  On  what 
legal  ground  can  he,  without  good  reason,  while  providing  agreeable 
terms,  facilities,  and  accommodations  for  the  conveyance  of  A  and  his 
goods,  provide  such  disagreeable  ones  for  B  that  he  is  practicall}'  com- 
pelled to  stay  at  home  with  his  goods,  deprived  of  his  share  of  the 
common  right  of  transportation?  What  legal  principle,  guaranteeing 
the  common  right  against  direct  attack,  sanctions  its  destruction  by  a 
circuitous  invasion?  As  no  one  can  infringe  the  common  right  of 
travel  and  commercial  intercourse  over  a  public  highway,  on  land  or 
water,  by  making  the  way  absolutel}'  impassable,  or  rendering  its  pas- 
sage unreasonabl}"  unpleasant,  unbealth}-,  or  unprofitable,  so  a  com- 
mon carrier  cannot  infringe  the  common  right  of  common  carriage, 
either  b}'  unreasonably  refusing  to  carry  one  or  all,  for  one  or  for  all, 
or  by  imposing  unreasonabl}'  unequal  terms,  facilities,  or  accommoda- 
tions, which  would  practically  amount  to  an  embargo  upon  the  travel 
or  traffic  of  some  disfavored  individual.  And,  as  all  common  carriers 
combined  cannot,  directh'  or  indirectly,  destroy  or  interrupt  the  com- 
mon right  by  stopping  their  branch  of  the  public  service  while  they 
remain  in  that  service,  so  neither  all  of  them  together  nor  one  alone 
can,  directly  or  indirectly,  deprive  any  individual  of  his  lawful  enjoy- 
ment of  the  common  right.  Equality,  in  the  sense  of  freedom  from 
unreasonable  discrimination,  being  of  the  very  substance  of  the  com- 
mon right,  an  individual  is  deprived  of  his  lawful  enjoyment  of  the 
common  right  when  he  is  subjected  to  unreasonable  and  injurious  dis- 
crimination in  respect  to  terms,  facilities,  or  accommodations.  That  is 
not,  in  the  ordinary  legal  sense,  a  public  highway',  in  which  one  man  is 
unreasonably  privileged  to  use  a  convenient  path,  and  another  is  un- 
reasonably restricted  to  the  gutter  ;  and  that  is  not  a  public  service  of 
common  carriage,  in  which  one  enjo^'s  an  unreasonable  preference  or 
advantage,  and  another  suffers  an  unreasonable  prejudice  or  disadvan- 
tage. A  denial  of  the  entire  right  of  service  by  a  refusal  to  carry, 
differs,  if  at  all,  in  degree  only,  and  the  amount  of  damage  done,  and 
not  in  the  essential  legal  character  of  the  act,  from  a  denial  of  the 
right  in  part  by  an  unreasonable  discrimination  in  terms,  facilities,  or 
accommodations.  Whether  the  denial  is  general  by  refusing  to  furnish 
any  transportation  whatever,  or  special  by  refusing  to  carry  one  person 
or  his  goods ;  whether  it  is  direct  by  expressly  refusing  to  carry,  or 
indirect  by  imposing  such  unreasonable  terms,  facilities,  or  accommo- 
dations as  render  carriage  undesirable ;  whether  unreasonableness  of 
terras,  facilities,  or  accommodations  operates  as  a  total  or  a  partial 
denial  of  the  right ;  and  whether  the  unreasonableness  is  in  the  intrin- 
sic, individual  nature  of  the  terms,  facilities,  or  accommodations,  or  in 
their  discriminating,  collective,  and  comparative  character,  —  the  riglit 
denied  is  one  and  the  same  common  right,  wliich  would  not  be  a  right 
if  it  could  be  rightfully  denied,  and  would  not  be  common,  in  the  legal 
sense,  if  it  could  be  legally  subjected  to  unreasonable  discrimination, 


152  McDUFFEE   v.   PORTLAND   &  EOCHESTER   RAILROAD. 

and  parcelled  out  among  men  in  unreasonabl}-  superior  and  inferior 
grades  at  the  behest  of  the  servant  from  whom  the  service  is  due. 

The  commonness  of  the  right  necessarily  implies  an  equality  of  right, 
in  the  sense  of  freedom  from  unreasonable  discrimination ;  and  any 
practical  invasion  of  the  common  right  by  an  unreasonable  discrimina- 
tion practised  by  a  carrier  held  to  the  common  service  is  insubordi- 
nation and  mutiny,  for  which  he  is  liable,  to  the  extent  of  the  damage 
inflicted,  in  an  action  of  case  at  common  law.  The  question  of  reason- 
ableness of  price  may  be  something  more  than  the  question  of  actual 
cost  and  value  of  service.  If  the  actual  value  of  certain  transportation 
of  one  hundred  barrels  of  flour,  affording  a  reasonable  profit  to  the 
carrier,  is  one  hundred  dollars  ;  if,  all  the  circumstances  that  ought  to 
be  considered  being  taken  into  account,  that  sum  is  the  price  which 
ought  to  be  charged  for  that  particular  service ;  and  if  the  carrier 
charges  everybody  that  price  for  that  service,  there  is  no  encroachment 
on  the  common  right.  But  if  for  that  service  the  carrier  charges  one 
flour  merchant  one  hundred  dollars,  and  another  fifty  dollars,  the  com- 
mon right  is  as  manifestly  violated  as  if  the  latter  were  charged  one 
hundred  dollars,  and  the  former  two  hundred.  What  kind  of  a  com- 
mon right  of  carriage  would  that  be  which  the  carrier  could  so  admin- 
ister as  to  unreasonably,  capriciously,  and  despotically  enrich  one  man 
and  ruin  another?  If  the  service  or  price  is  unreasonable  and  injuri- 
ous, the  unreasonableness  is  equally  actionable,  whether  it  is  in  in- 
equality or  in  some  other  particular.  A  service  or  price  that  would 
otherwise  be  reasonable  may  be  made  unreasonable  by  an  unreason- 
able discrimination,  because  such  a  discrimination  is  a  violation  of  the 
common  right.  There  might  be  cases  where  persons  complaining  of 
such  a  violation  would  have  no  cause  of  action,  because  they  would 
not  be  injured.  There  might  be  cases  where  the  discrimination  would 
be  injurious;  in  such  cases  it  would  be  actionable.  There  might  be 
cases  where  the  remedy  by  civil  suit  for  damages  at  common  law 
would  be  practically  ineffectual  on  account  of  the  diflSculty  of  proving 
large  damages,  or  the  incompetence  of  a  multiplicity  of  such  suits  to 
abate  a  continued  grievance,  or  for  other  reasons  ;  in  such  cases  there 
would  be  a  plain  and  adequate  remedy,  where  there  ought  to  be  one, 
b3'  the  re-enforcing  operation  of  an  injunction,  or  by  indictment,  infor- 
mation, or  other  common,  familiar,  and  appropriate  course  of  law. 

The  common  and  equal  right  is  to  reasonable  transportation  service 
for  a  reasonable  compensation.  Neither  the  service  nor  the  price  is 
necessarily  unreasonable  because  it  is  unequal,  in  a  certain  narrow, 
strict,  and  literal  sense  ;  but  that  is  not  a  reasonable  service,  or  a 
reasonable  price,  which  is  unreasonably  unequal.  The  question  is  not 
merel}'  whether  the  service  or  price  is  absolutely  unequal,  in  the  nar- 
rowest sense,  but  also  whether  the  inequality  is  unreasonable  and 
injurious.  There  ma}'  be  acts  of  charitj' ;  there  may  be  different  prices 
for  different  kinds  or  amounts  of  service  ;  there  may  be  many  diflfer- 
ences  of  price  and  service,  entirely  consistent  with  the  general  prin- 


McDUFFEE  V.   PORTLAND   &   KOCHESTER   RAILROAD.  153 

ciple  of  reasonable  equality  which  distinguishes  the  duty  of  a  common 
carrier  in  the  legal  sense  from  the  duty  of  a  carrier  who  is  riot  a  com- 
mon one  in  that  sense.  A  certain  inequality  of  terms,  facilities,  or 
accommodations  may  be  reasonable,  and  required  by  the  doctrine  of 
reasonableness,  and  therefore  not  an  infringement  of  the  common 
right.  It  may  be  the  duty  of  a  common  carrier  of  passengers  to  carry 
under  discriminating  restrictions,  or  to  refuse  to  carry  those  who,  by 
reason  of  their  physical  or  mental  condition,  would  injure,  endanger, 
disturb,  or  annoy  other  passengers ;  and  an  analogous  rule  may  be 
applicable  to  the  common  carriage  of  goods.  Healthy  passengers  in  a 
palatial  car  would  not  be  provided  with  reasonable  accommodations  if 
the\'  were  there  unreasonably  and  negligently  exposed  by  the  carrier 
to  the  society  of  small-pox  patients.  Sober,  quiet,  moral,  and  sensi- 
tive travellers  may  have  cause  to  complain  of  their  accommodations  if 
the}'  are  unreasonabl}'  exposed  to  the  companionship  of  unrestrained, 
intoxicated,  noisy,  profane,  and  abusive  passengers,  who  may  enjoy 
the  discomfort  the}-  cast  upon  others.  In  one  sense,  both  classes,  car- 
ried together,  might  be  provided  with  equal  accommodations  ;  in  another 
sense,  they  would  not.  The  feelings  not  corporal,  and  the  decencies  of 
progressive  civilization,  as  well  as  ph3'sical  life,  health,  and  comfort, 
are  entitled  to  reasonable  accommodations.  2  Greenl.  Ev.  sec.  222  a; 
Bennett  v.  Button,  10  N.  He  481,  486.  Mental  and  moral  sensibilities, 
unreasonably  wounded,  ma}'  be  an  actual  cause  of  suffering,  as  plain 
as  a  broken  limb ;  and  if  the  injury  is  caused  by  unreasonableness  of 
facilities  or  accommodations  (which  is  synonymous  with  unreasonable- 
ness of  service),  it  may  be  as  plain  a  legal  cause  of  action  as  any 
bodil}'  hurt,  commercial  inconvenience,  or  pecuniary  loss.  To  allow 
one  passenger  to  be  made  uncomfortable  by  another  committing  an 
outrage,  without  ph3'sical  violence,  against  the  ordinary  proprieties  of 
life  and  the  common  sentiments  of  mankind,  may  be  as  clear  a  viola- 
tion of  the  common  right,  and  as  clear  an  actionable  neglect  of  a 
common  carrier's  duty,  as  to  permit  one  to  occupy  two  seats  while 
another  stands  in  the  aisle.  Although  reasonableness  of  service  or 
price  may  require  a  reasonable  discrimination,  it  does  not  tolerate  an 
unreasonable  one ;  and  the  law  does  not  require  a  court  or  jury  to 
waste  time  in  a  useless  investigation  of  the  question  whether  a  proved 
injurious  unreasonableness  of  service  or  price  was  in  its  intrinsic  or 
in  its  discriminating  quality.  The  main  question  is,  not  whether  the 
unreasonableness  was  in  this  or  in  that,  but  whether  there  was  un- 
reasonableness, and  whether  it  was  injurious  to  the  plaintiff. 

This  question  may  be  made  unnecessarily  difficult  by  an  indefinite- 
ness,  confusion,  and  obscurity  of  ideas  that  may  arise  when  the  public 
duty  of  a  common  carrier,  and  the  correlative  common  right  to  his 
reasonable  service  for  a  reasonable  price,  are  not  clearly  and  broadl}' 
distinguished  from  a  matter  of  private  charity.  If  A  receives,  as  a 
charity,  transportation  service  without  price,  or  for  less  than  a  reason- 
able price,  from  B,  who  is  a  common  carrier,  A  does  not  receive  it  as 


154  McDUFFEE   V.   PORTLAND   &   KOCHESTER   RAILROAD. 

his  enjoyment  of  the  common  right ;  B  does  not  give  it  as  a  perform- 
ance of  his  public  dut\';  C,  who  is  required  to  pay  a  reasonable  price 
for  a  reasonable  service,  is  not  injured  ;  and  the  public,  supplied  with 
reasonable  facilities  and  accommodations  on  reasonable  terras,  cannot 
complain  that  B  is  violating  his  public  dut}'.  There  is,  in  such  a  case, 
no  discrimination,  reasonable  or  unreasonable,  in  that  reasonable  ser- 
vice for  a  reasonable  price  which  is  the  common  right.  A  person  who 
is  a  common  carrier  maj'  devote  to  the  need}',  in  any  necessary  form 
of  relief,  all  the  reasonable  profits  of  his  business.  He  has  the  same 
right  that  an^'  one  else  has  to  give  money  or  goods  or  transportation 
to  the  poor.  But  it  is  neither  his  legal  dut^-  to  be  charitable  at  his 
own  expense,  nor  his  legal  right  to  be  charitable  at  the  expense  of 
those  whose  servant  he  is.  If  his  reasonable  compensation  for  certain 
carriage  is  one  hundred  dollars,  and  his  just  profit,  not  needed  in  his 
business,  is  one  tenth  of  that  sum,  he  has  ten  dollars  which  he  may 
legall}'  use  for  feeding  the  hungrj-,  clothing  the  naked,  or  carrying 
those  in  poverty  to  whom  transportation  is  one  of  the  necessaries  of 
life,  and  who  suffer  for  lack  of  it.  But  if  he  charges  the  ten  dollars  to 
those  who  pa}'  him  for  their  transportation,  if  he  charges  them  one 
hundred  and  ten  dollars  for  one  hundred  dollars'  worth  of  service,  he 
is  not  benevolent  himself,  but  he  is  undertaking  to  compel  those  to  be 
benevolent  who  are  entitled  to  his  service;  he  is  violating  the  common 
right  of  reasonable  terms,  which  cannot  be  increased  b}'  compulsory 
contributions  for  an}'  charitable  purpose.  So,  if  he  carries  one  or 
many  for  half  the  reasonable  price,  and  reimburses  himself  by  charging 
others  more  than  the  reasonable  price,  he  is  illegally  administering, 
not  his  own,  but  other  people's  charity.  And  when  he  attempts  to 
justify  an  instance  of  apparent  discrimination  on  the  ground  of  char- 
ity, it  may  be  necessary  to  ascertain  whose  charity  was  dispensed,  — 
whether  it  was  his,  or  one  forced  by  him  from  others,  including  the 
party  complaining  of  it.  But  it  will  not  be  necessary  to  consider  this 
point  further  until  there  is  some  reason  to  believe  that  what  the  plain- 
tiff complains  of  is  defended  as  an  act  of  disinterested  benevolence 
performed  by  the  railroad  at  its  own  expense. 

In  Garton  v.  B.  &  E.  R.  Co.,  1  B.  &  S.  112,  154,  165,  when  it  was 
not  found  that  any  unreasonable  inequality  had  been  made  by  the 
defendants  to  the  detriment  of  the  plaintiffs,  it  was  held  that  a  reason- 
able price  paid  by  them  was  not  made  unreasonable  by  a  less  price 
paid  by  others,  —  a  proposition  sufficiently  plain,  and  expressed  by 
Crompton,  J.,  in  another  form,  when  he  said  to  the  plaintiff's'  counsel 
during  the  argument  of  that  case  :  "  The  charging  another  person  too 
little  is  not  charging  you  too  much."  The  proposition  takes  it  for 
granted  that  it  has  been  settled  that  the  price  paid  by  the  party  com- 
plaining was  reasonable,  —  a  conclusion  that  settles  the  whole  contro- 
versy as  to  that  price.  But  before  that  conclusion  is  reached,  it  may 
be  necessary  to  determine  whether  the  receipt  of  a  less  price  from 
another  person  was  a  matter  of  charity,  or  an  unreasonable  discrimi- 


McDUFFEE   V.   PORTLAND   &   EOCHESTER   RAILROAD.  155 

nation  and  a  violation  of  tlie  common  right.  Charging  A  less  than  B 
for  the  same  service,  or  service  of  the  same  value,  is  not  of  itself  neces- 
sarih'  charging  A  too  little,  or  charging  B  too  much ;  but  it  may  be 
evidence  tending  to  show  that  B  is  charged  too  much,  either  by  being 
charged  more  than  the  actual  value  of  the  service,  or  by  being  made 
the  victim  of  an  unjustifiable  discrimination.  The  doctrine  of  reason- 
ableness is  not  to  be  overturned  by  a  conclusive  presumption  that  every 
inequalit}-  of  price  is  the  work  of  alms-giving,  dictated  by  a  motive  of 
humanity.  If  an  apparent  discrimination  turns  out,  on  examination, 
to  have  been,  not  a  discrimination  in  the  performance  of  the  public 
duty,  but  a  private  charity,  there  is  an  end  of  the  case.  But  if  an  ap- 
parent discrimination  is  found  to  have  been  a  real  one,  the  question 
is  whether  it  was  reasonable,  and,  if  unreasonable,  whether  the  party 
complaining  was  injured  by  it. 

In  some  cases,  this  may  be  an  inquiry  of  some  difficulty  in  each  of 
its  branches.  But  such  difficulty  as  there  may  be  will  arise  from  the 
breadth  of  the  inquir}',  the  intricate  nature  of  the  matter  to  be  investi- 
gated, the  circumstantial  character  of  the  evidence  to  be  weighed,  and 
the  appUcation  of  the  legal  rule  to  the  facts,  and  not  from  any  want  of 
clearness  or  certainty  in  the  general  principle  of  the  common  law  ap- 
plicable to  the  subject.  The  difficulty  will  not  be  in  the  common  law, 
and  cannot  be  justly  overcome  by  altering  that  law.  The  inquiry  may 
sometimes  be  a  bi'oad  one,  but  it  will  never  be  broader  than  the  justice 
of  the  case  requires.  A  narrow  view  that  would  be  partial  cannot  be 
taken  ;  a  narrow  test  of  right  and  wrong  that  would  be  grossly  inequi- 
table cannot  be  adopted.  If  the  doctrine  of  reasonableness  is  not  the 
doctrine  of  justice,  it  is  for  him  who  is  dissatisfied  with  it  to  show  its 
injustice  ;  if  it  is  the  doctrine  of  justice,  it  is  for  him  to  show  the 
grounds  of  his  discontent. 

The  decision  in  N.  E.  Express  Co.  v.  M.  C.  R.  Co.,  57  Me.  188,  sat- 
isfactorily disposed  of  the  argument,  vigorously  and  ably  pressed  by 
the  defendants  in  that  case,  that  a  railroad,  carrying  one  expressman 
and  his  freight  on  passenger  trains,  on  certain  reasonable  conditions, 
hut  under  an  agreement  not  to  perform  a  like  service  for  others,  does 
not  thereby  hold  itself  out  as  a  common  carrier  of  expressmen  and 
their  freight  on  passenger  trains,  on  similar  conditions.  So  far  as  the 
common  right  of  mere  transportation  is  concerned,  and  without  reference 
to  the  peculiar  liability  of  a  common  carrier  of  goods  as  an  insurer, 
such  an  arrangement  would,  necessarily  and  without  hesitation,  be 
found,  by  the  court  or  the  jury,  to  be  an  evasion.  A  railroad  corpora- 
tion, carrying  one  expressman,  and  enabling  him  to  do  all  the  express 
business  on  the  line  of  their  road,  do  hold  themselves  out  as  common 
carriers  of  expresses  ;  and  when  they  unreasonably  refuse,  directly  or 
indirectly,  to  carry  any  more  public  servants  of  that  class,  they  perform 
this  dut\-  with  illegal  partiality.  The  legal  principle,  which  establishes 
and  secures  the  common  right,  being  the  perfection  of  reason,  the  right 
is  not  a  mere  nominal  one.  and  is  in  no  danger  of  being  destroyed  by 


156      McDUFFEE  V.   PORTLAND  &  ROCHESTER  RAILROAD. 

a  quibble.  If  there  could  possibly  be  a  case  in  which  the  exclusive 
arraugeraent  in  favor  of  one  expressman  would  not  be  an  evasion  of 
the  common-law  right,  the  question  might  arise  whether,  under  our 
statute  law  (Gen.  Stats,  chs.  145,  146,  149,  150),  public  railroad  cor- 
porations are  not  common  carriers  (at  least  to  the  extent  of  furnishing 
reasonable  facilities  and  accommodations  of  transportation  on  reason- 
able terms)  of  such  passengers  and  such  freight  as  there  is  no  good 
reason  for  their  refusing  to  carry. 

The  public  would  seem  to  have  reason  to  claim  that  the  clause  of 
Gen.  Stats,  ch.  146,  sec.  1,  —  "  Railroads  being  designed  for  the  public 
accommodation,  like  other  highways,  are  public,"  —  is  a  very  compre- 
hensive provision  ;  that  public  agents,  taking  private  property  for  the 
public  use,  are  bound  to  treat  all  alike  (that  is,  without  unreasonable 
preference)  so  far  as  the  property  is  used,  or  its  use  is  rightfully  de- 
manded, b}'  the  public  for  whose  use  it  was  taken  ;  and  that,  in  a 
country  professing  to  base  its  institutions  on  the  natural  equality-  of 
men  in  respect  to  legal  rights  and  remedies,  it  cannot  be  presumed 
that  the  legislature  intended,  in  the  charter  of  a  common  carrier,  to 
grant  an  implied  power  to  create  monopolies  in  the  express  business, 
or  in  any  other  business,  by  undue  and  unreasonable  discriminations. 
There  would  seem  to  be  great  doubt  whether,  upf)n  any  fair  construc- 
tion of  general  or  special  statutes,  a  common  carrier,  incorporated  in 
this  country,  could  be  held  to  have  received  from  the  legislature  the 
power  of  making  unreasonable  discriminations  and  creating  monopolies, 
unless  such  power  were  conferred  in  very  explicit  terms.  And,  if  such 
power  were  attempted  to  be  conferred,  there  would  be,  in  this  State,  a 
question  of  the  constitutional  authority  of  the  legislature  to  convey  a 
prerogative  so  hostile  to  the  character  of  our  institutions  and  the  spirit 
of  the  organic  law.  But,  resting  the  decision  of  this  case,  as  we  do, 
on  the  simple,  elementar}^  and  unrepealed  principle  of  the  common 
law,  equally  applicable  to  individuals  and  corporations,  we  have  no 
occasion,  at  present,  to  go  into  these  other  inquiries. 

Case  discharged.^ 

1  Compare :  Pickford  v.  G.  J.  Ry.,  10  M.  &  W.  397 ;  Parker  i'.  G.  W.  Ej.,  7  M.  & 
G.  253;  Parker  v.  G.  W.  Ry.,  11  C.  B.  545;  Sandford  v.  R.  R.,  24  Pa,  378;  New  Eng. 
Exp.  Co.  V.  R.  R.,  57  Me.  188.  —  Ed. 


THE   EXPRESS   CASES.  157 


THE   EXPRESS   CASES. 

Supreme  Court  of  the  United  States,  1886. 
[117  U.S.  1.] 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court.  ^ 

These  suits  present  substantially  the  same  questions  and  may  prop- 
erly be  considered  together.  They  were  each  brought  by  an  express 
company  against  a  railway  company  to  restrain  the  railway  company 
from  interfering  with  or  disturbing  in  any  manner  the  facilities  there- 
tofore afforded  the  express  company  for  doing  its  business  on  the 
railway  of  the  railway  company.  .  .  .  The  evidence  shows  that  the 
express  business  was  first  organized  in  the  United  States  about  the 
year  1839.  ...  It  has  become  a  public  necessity,  and  ranks  in  im- 
portance with  the  mails  and  with  the  telegraph.  It  employs  for  the 
purposes  of  transportation  all  the  important  railroads  in  the  United 
States,  and  a  new  road  is  rarely  opened  to  the  public  without  being 
equipped  in  some  form  with  express  facilities.  It  is  used  in  almost 
every  conceivable  way,  and  for  almost  every  conceivable  purpose,  by 
the  people  and  by  the  government.  All  have  become  accustomed  to 
it,  and  it  cannot  be  taken  away  without  breaking  up  many  of  the  long 
settled  habits  of  business,  and  interfering  materially  with  the  con- 
veniences of  social  life. 

In  this  connection  it  is  to  be  kept  in  mind  that  neither  of  the  I'ail- 
road  companies  involved  in  these  suits  is  attempting  to  deprive  the 
general  public  of  the  advantages  of  an  express  business  over  its  road. 
The  controversy,  in  each  case,  is  not  with  the  public  but  with  a  single 
express  company.  And  the  real  question  is  not  whether  the  railroad 
companies  are  authorized  b}'  law  to  do  an  express  business  themselves  ; 
nor  whether  the}'  must  carry  express  matter  for  the  public  on  their 
passenger  trains,  in  the  immediate  charge  of  some  person  specially 
appointed  for  that  purpose ;  nor  whether  the}-  shall  carry  express 
freights  for  express  companies  as  they  carry  like  freights  for  the  gen- 
eral public  ;  but  whether  it  is  their  duty  to  furnish  the  Adams  Com- 
pany or  the  Southern  Company  facilities  for  doing  an  express  business 
upon  their  roads  the  same  in  all  respects  as  those  they  provide  for 
themselves  or  afford  to  any  other  express  company. 

When  the  business  began  railroads  were  in  their  infancy.  They 
were  few  in  number,  and  for  comparatively  short  distances.  There 
has  never  been  a  time,  however,  since  the  express  business  was  started 
that  it  has  not  been  encouraged  by  the  railroad  companies,  and  it  is 
no  doubt  true,  as  alleged  in  each  of  the  bills  filed  in  these  cases,  that 
"  no  railroad  company  in  the  United  States  .  .  .  has  ever  refused  to 
transport  express  matter  for  the  public,  upon  the  application  of  some 
express  company  of  some  form  of  legal  constitution.     Every  railway 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


158  THE   EXPRESS   CASES. 

company  .  .  .  has  recognized  the  right  of  the  public  to  demand  trans- 
portation by  the  railway  facilities  which  the  public  has  permitted  to  be 
created,  of  that  class  of  matter  which  is  known  as  express  matter." 
Express  companies  have  undoubtedly'  invested  their  capital  and  built 
up  their  business  in  the  hope  and  expectation  of  securing  and  keeping 
fur  themselves  such  railway  facilities  as  they  needed,  and  railroad  com- 
panies have  likewise  relied  upon  the  express  business  as  one  of  their 
important  sources  of  income. 

But  it  is  neither  averred  in  the  bills,  nor  shown  b}'  the  testimony, 
that  any  railroad  company  in  the  United  States  has  ever  held  itself 
out  as  a  common  carrier  of  express  companies,  that  is  to  say,  as  a 
common  carrier  of  common  carriers.  On  the  contrary  it  lias  been 
shown,  and  in  fact  it  was  conceded  upon  the  argument,  that,  down  to 
the  time  of  bringing  these  suits,  no  railroad  company  had  taken  an 
express  company  on  its  road  for  business  except  under  some  special  con- 
tract, verbal  or  written,  and  generally  written,  in  which  the  rights  and  tlie 
duties  of  the  respective  parties  were  carefuUj'  fixed  and  defined.  These 
contracts,  as  is  seen  b}'  those  in  these  records,  vary  necessarily  in  their 
details,  according  to  the  varying  circumstances  of  each  particular  case, 
and  according  to  the  judgment  and  discretion  of  the  parties  immedi- 
atel}'  concerned.  It  also  appears  that,  with  very  few  exceptions,  only 
one  express  company  has  been  allowed  by  a  railroad  company  to  do 
business  on  its  road  at  the  same  time.  In  some  of  the  States,  statutes 
have  been  passed  which,  either  in  express  terms  or  b}'  judicial  inter- 
pretation, require  railroad  companies  to  furnish  equal  facilities  to  all 
express  companies,  Gen.  Laws  N.  H.,  1878,  ch.  163,  §  2;  Rev.  Stat. 
Maine,  1883,  494,  ch.  51,  §  134;  but  these  are  of  comparative  recent 
origin,  and  thus  far  seem  not  to  have  been  generally  adopted.  ... 

The  reason  is  obvious  whj-  special  contracts  in  reference  to  this  busi- 
ness are  necessar}'.  The  transportation  required  is  of  a  kind  which 
must,  if  possible,  be  had  for  the  most  part  on  passenger  trains.  It 
requires  not  only  speed,  but  reasonable  certainty  as  to  the  quantity 
that  will  be  carried  at  any  one  time.  As  the  things  carried  are  to  be 
kept  in  the  personal  custod}'  of  the  messenger  or  other  employe  of  the 
express  compan}',  it  is  important  that  a  certain  amount  of  car  space 
should  be  specially  set  apart  for  the  business,  and  that,  this  should,  as 
far  as  practicable,  be  put  in  the  exclusive  possession  of  the  express- 
man in  charge.  As  the  business  to  be  done  is  "  express,"  it  implies 
access  to  the  train  for  loading  at  the  latest,  and  for  unloading  at  the 
earliest,  convenient  moment.  All  this  is  entirel}'  inconsistent  with  the 
idea  of  an  express  business  on  passenger  trains  free  to  all  express 
carriers.  Railroad  companies  are  by  law  carriers  of  both  persons  and 
propert\'.  Passenger  trains  have  from  the  beginning  been  provided  for 
the  transportation  primarily  of  passengers  and  their  baggage.  This 
must  be  done  with  reasonable  promptness  and  with  reasonable  comfort 
to  the  passenger.  The  express  business  on  passenger  trains  is  in  a 
degree  subordinate  to  the  passenger  business,  and  it  is  consequently 


THE   EXPRESS   CASES.  159 

the  duty  of  a  railroad  compan}-  in  arranging  for  the  express  to  see  that 
there  is  as  little  interference  as  possible  with  the  wants  of  passengers. 
This  implies  a  special  understanding  and  agreement  as  to  the  amount 
of  car  space  that  will  be  afforded,  and  the  conditions  on  which  it  is  to 
be  occupied,  the  particular  trains  that  can  be  used,  the  places  at  which 
the}'  shall  stop,  the  price  to  be  paid,  and  all  the  varying  details  of  a 
business  which  is  to  be  adjusted  between  two  public  servants,  so  that 
each  can  perform  in  the  best  manner  its  own  particular  duties.  All 
this  must  necessaril}'  be  a  matter  of  bargain,  and  it  by  no  means  fol- 
lows that,  because  a  railroad  company  can  serve  one  express  company 
in  one  wa}',  it  can  as  well  serve  another  compan}'  in  the  same  wa}',  and 
still  perform  its  other  obligations  to  the  public  in  a  satisfactory  manner. 
The  car  space  that  can  be  given  to  the  express  business  on  a  passenger 
train  is,  to  a  certain  extent,  limited,  and,  as  has  been  seen,  that  which 
is  allotted  to  a  particular  carrier  must  be,  in  a  measure,  under  his  exclu- 
sive control.  No  express  company  can  do  a  successful  business  unless 
it  is  at  all  times  reasonably  sure  of  the  means  it  requires  for  trans- 
portation. On  important  lines  one  company  will  at  times  fill  all  the 
space  the  railroad  company  can  well  allow  for  the  business.  If  this 
space  had  to  be  divided  among  several  companies,  there  might  be  occa- 
sions when  the  public  would  be  put  to  inconvenience  by  delays  which 
could  otherwise  be  avoided.  So  long  as  the  public  are  served  to  their 
reasonable  satisfaction,  it  is  a  matter  of  no  importance  who  serves 
them.  The  railroad  company  performs  its  whole  duty  to  the  public  at 
large  and  to  each  individual  when  it  affords  the  public  all  reasonable 
express  accommodations.  If  this  is  done  the  railroad  company  owes 
no  duty  to  the  public  as  to  the  particular  agencies  it  shall  select  for 
that  purpose.  The  public  require  the  carriage,  but  the  company  may 
choose  its  own  appropriate  means  of  carriage,  always  provided  they  are 
such  as  to  insure  reasonable  promptness  and  security. 

The  inconvenience  that  would  come  from  allowing  more  than  one 
express  company  on  a  railroad  at  the  same  time  was  apparently  so 
well  understood  both  by  the  express  companies  and  the  railroad  com- 
panies that  the  three  principal  express  companies,  the  Adams,  the 
American,  and  the  United  States,  almost  immediately  on  their  organ- 
ization, now  more  than  thirty  years  ago,  by  agreement  divided  the 
territory  in  the  United  States  traversed  by  railroads  among  themselves, 
and  since  that  time  each  has  confined  its  own  operations  to  the  par- 
ticular roads  which,  under  this  division,  have  been  set  apart  for  its 
special  use.  No  one  of  these  companies  has  ever  interfered  with  the 
other,  and  each  has  worked  its  allotted  territory,  always  extending  its 
lines  in  the  agreed  directions  as  circumstances  would  permit.  At  the 
beginning  of  the  late  civil  war  the  Adams  Company  gave  up  its  terri- 
torv  in  the  Southern  States  to  the  Southern  Company,  and  since  then 
the"  Adams  and  the  Southern  have  occupied,  under  arrangements 
between  themselves,  that  part  of  the  ground  originally  assigned  to  the 
Adams  alone.     In  this  way  these  three  or  four  important  and  influ- 


160  THE   EXPRESS   CASES. 

ential  companies  were  able  substantially  to  control,  from  1854  until 
about  the  time  of  the  bringing  of  these  suits,  all  the  railway  express 
business  in  the  United  States,  except  upon  the  Pacific  roads  and  in 
certain  comparativel}'  limited  localities.  In  fact,  as  is  stated  in  the 
argument  for  the  express  companies,  the  Adams  was  occupying  when 
these  suits  were  brought,  one  hundred  and  fifty-five  railroads,  with  a 
mileage  of  21,216  miles,  the  American  two  hundred  roads,  with  a  mile- 
age of  28,000  miles,  and  the  Southern  ninetj'-five  roads,  with  a  mileage 
of  10,000  miles.  Tlirough  their  business  arrangements  with  each  other, 
and  with  other  connecting  lines,  they  have  been  able  for  a  long  time 
to  receive  and  contract  for  the  delivery  of  any  package  committed  to 
their  charge  at  almost  any  place  of  importance  in  the  United  States 
and  in  Canada,  and  even  at  some  places  in  Europe  and  the  West 
Indies.  They  have  invested  millions  of  dollars  in  their  business,  and 
have  secured  public  confidence  to  such  a  degree  that  they  are  trusted 
unhesitatingly  by  all  who  need  their  services.  The  good  will  of  their 
business  is  of  very  great  value,  if  they  can  keep  their  present  facilities 
for  transportation.  The  longer  their  lines  and  the  more  favorable  their 
connections,  the  greater  will  be  their  own  profits,  and  the  better  tlieir 
means  of  serving  the  public.  In  making  their  investments  and  in 
extending  their  business,  they  have  undoubtedly  relied  on  securing  and 
keeping  favorable  railroad  transportation,  and  in  this  they  were  en- 
courao^ed  by  the  apparent  willingness  of  railroad  companies  to  accom- 
modate them  ;  but  the  fact  still  remains  that  they  have  never  been 
allowed  to  do  business  on  any  road  except  under  a  special  contract, 
and  that  as  a  rule  only  one  express  company  has  been  admitted  on  a 
road  at  the  same  time. 

The  territory  traversed  by  the  railroads  involved  in  the  present  suits 
is  part  of  that  allotted  in  the  division  between  the  express  companies 
to  the  Adams  and  Southern  companies,  and  in  due  time  after  the  roads 
were  built  these  companies  contracted  with  the  railroad  companies  for 
the  privileges  of  an  express  business.  The  contracts  were  all  in  writ- 
ing, in  which  the  rights  of  the  respective  parties  were  clearly  defined, 
and  there  is  now  no  dispute  about  what  they  were.  Each  contract 
contained  a  provision  for  its  termination  by  either  party  on  notice. 
That  notice  has  been  given  in  all  the  cases  by  the  railroad  companies, 
and  the  express  companies  now  sue  for  relief.  Clearly  this  cannot  be 
'afforded  by  keeping  the  contracts  in  force,  for  both  parties  have  agreed 
that  they  may  be  terminated  at  any  time  by  either  party  on  notice  ; 
nor  by  making  new  contracts,  because  that  is  not  within  the  scope 
of  judicial  power. 

The  exact  question,  then,  is  whether  these  express  companies  can  now 
demand  as  a  right  what  they  have  heretofore  had  only  as  by  permission. 
That  depends,  as  is  conceded,  on  whether  all  railroad  companies  are 
now  by  law  charged  with  the  duty  of  carrying  all  express  companies 
in  the  way  that  express  carriers  when  taken  are  usually  carried,  just  as 
they  are  with  the  duty  of  carrying  all  passengers  and  freights  when 


THE    EXPEESS    CASES.  161 

offered  in  the  way  that  passengers  and  freight  are  carried.  The  con- 
tracts which  these  companies  once  had  arc  now  out  of  the  way,  and 
the  companies  at  this  time  possess  no  other  rights  tlian  such  as  belong 
to  any  other  company  or  person  wishing  to  do  an  express  business 
upon  these  roads.  If  the^'  are  entitled  to  the  relief  the}'  ask  it  is 
because  it  is  the  duty  of  the  railroad  companies  to  furnish  express 
facilities  to  all  alike  who  demand  them. 

The  constitutions  and  the  laws  of  the  States  in  whi6h  the  roads  are 
situated  place  the  companies  that  own  and  operate  them  on  the  foot- 
ing of  common  carriers,  but  there  is  nothing  which  in  positive  terms 
requires  a  railroad  company  to  carry  all  express  companies  in  the  way 
that  under  some  circumstances  they  may  be  able  without  inconvenience 
to  carry  one  company.  In  Kansas,  the  Missouri,  Kansas,  and  Texas 
Company  must  furnish  sufficient  accommodations  for  the  transporta- 
tion of  all  such  express  freight  as  may  be  offered,  and  in  each  of  the 
States  of  Missouri,  Arkansas,  and  Kansas  railroad  companies  are  prob- 
ably prohibited  from  making  unreasonable  discriminations  in  tlieir  busi- 
ness as  carriers,  but  this  is  alL 

Such  being  the  case,  the  right  of  the  express  companies  to  a  decree 
depends  upon  their  showing  the  existence  of  a  usage,  having  the  force 
of  law  in  the  express  business,  which  requires  railroad  companies  to 
carry  all  express  companies  on  their  passenger  trains  as  express  carri- 
ers are  usually  carried.  It  is  not  enough  to  establish  a  usage  to  carry 
some  express  company,  or  to  furnish  the  public  in  some  wa}-  with  the 
advantages  of  an  express  business  over  the  road.  The  question  is  not 
whether  these  railroad  companies  must  furnish  the  general  public  with 
reasonable  express  facilities,  but  whether  they  must  carry  these  par- 
ticular express  carriers  for  the  purpose  of  enabling  them  to  do  an 
express  business  over  the  lines. 

In  all  these  voluminous  records  there  is  not  a  syllable  of  evidence  to 
show  a  usage  for  the  carriage  of  express  companies  on  the  passenger 
trains  of  railroads  unless  specially  contracted  for.  While  it  has  uni- 
formly been  the  habit  of  railroad  companies  to  arrange,  at  the  earliest 
practicable  moment,  to  take  one  express  company  on  some  or  all  of 
their  passenger  trains,  or  to  provide  some  other  way  of  doing  an  ex- 
press business  on  their  lines,  it  has  never  been  the  practice  to  grant 
such  a  privilege  to  more  than  one  company  at  the  same  time,  unless  a 
statute  or  some  special  circumstances  made  it  necessarj-  or  desiral)le. 
The  express  companies  that  bring  these  suits  are  certainly  in  no  situ- 
ation to  claim  a  usage  in  their  favor  on  these  particular  roads,  because 
their  entry  was  originally  under  special  contracts,  and  no  other  compa- 
nies have  ever  been  admitted  except  b^'  agreement.  B}'  the  terms  of 
their  contracts  they  agreed  that  all  their  contract  rights  on  the  roads 
should  be  terminated  at  the  will  of  the  railroad  company.  The}'  were 
willing  to  begin  and  to  expand  their  business  upon  this  understanding, 
and  with  this  uncertainty  as  to  the  duration  of  their  privileges.     The 

stoppage  of  their  facilities  was  one  of  the  risks  they  assumed  wheu 

11 


162  THE   EXPRESS   CASES. 

they  accepted  their  contracts,  and  made  their  investments  under  them. 
If  the  general  public  were  complaining  because  the  railroad  companies 
refused  to  carry  express  matter  themselves  on  their  passenger  trains, 
or  to  allow  it  to  be  carried  by  others,  different  questions  would  be 
presented.  As  it  is,  we  have  only  to  decide  whether  these  particular 
express  companies  must  be  carried  notwithstanding  the  termination  of 
their  special  contract  rights. 

The  difficult}'  in  the  cases  is  apparent  from  the  form  of  the  decrees. 
As  express  companies  had  always  been  carried  by  railroad  companies 
under  special  contracts,  which  established  the  duty  of  the  railroad  com- 
pany upon  the  one  side,  and  fixed  the  liabilit}-  of  the  express  company 
on  the  other,  the  court,  in  decreeing  the  carriage  was  substantially 
compelled  to  make  for  the  parties  such  a  contract  for  the  business  as 
in  its  opinion  the}'  ought  to  have  made  for  themselves.  Having  found 
that  the  railroad  company  should  furnish  the  express  company  with 
facilities  for  business,  it  had  to  define  what  those  facilities  must  be, 
and  it  did  so  by  declaring  that  the}'  should  be  furnished  to  the  same 
extent  and  upon  the  same  trains  that  the  company  accorded  to  itself 
or  to  an}'  other  company  engaged  in  conducting  an  express  business 
on  its  line.  It  then  prescribed  the  time  and  manner  of  making  the 
payment  for  the  facilities  and  how  the  payment  should  be  secured,  as 
well  as  how  It  should  be  measured.  Thus,  by  the  decrees,  these  rail- 
road companies  are  compelled  to  carrj'  these  express  companies  at 
these  rates,  and  on  these  terms,  so  long  as  they  ask  to  be  carried,  no 
matter  what  other  express  companies  pa}'  for  the  same  facilities  or 
what  such  facilities  may,  for  the  time  being,  be  reasonably  worth,  unless 
the  court  sees  fit,  under  the  power  reserved  for  that  purpose,  on  the 
application  of  either  of  the  parties,  to  change  the  measure  of  compen- 
sation. In  this  way  as  it  seems  to  us,  "  the  court  has  made  an  arrange- 
ment for  the  business  intercourse  of  these  companies,  such  as,  in  its 
opinion,  they  ought  to  have  made  for  themselves,"  and  that,  we  said 
in  Atchiso?i,  Topeka  and  Santa  Fe  Railroad  Co.  v.  Denver  db  JVeio 
Orleans  Railroad  Co.^  110  U.  S.  667,  followed  at  this  term  in  Pull- 
man^ s  Palace  Car  Co.  v.  Missouri  Pacific  Railicay  Co.,  115  U.  S.  587, 
could  not  be  done.  The  regulation  of  matters  of  this  kind  is  legisla- 
tive in  its  character,  not  judicial.  To  what  extent  it  must  come,  if  it 
comes  at  all,  from  Congress,  and  to  what  extent  it  may  come  from  the 
States,  are  questions  we  do  not  now  undertake  to  decide  ;  but  that  it 
must  come,  when  it  does  come,  from  some  source  of  legislative  power, 
we  do  not  doubt.  The  legislature  may  impose  a  duty,  and  when  im- 
posed it  will,  if  necessary,  be  enforced  by  the  courts,  but,  unless  a  duty 
has  been  created  either  by  usage  or  by  contract,  or  by  statute,  the 
courts  cannot  be  called  on  to  give  it  eflfect. 

The  decree  in  each  of  the  cases  is  reversed,  and  the  suit  is  remanded, 
icith  directions  to  dissolve  the  injunction,  and,  after  adjusting  the 
accounts  between  the  parties  for  business  done  while  the  injunc- 
tions icere  in  force,  and  decreeing  the  pm/inoit  of  any  amounts 
that  may  be  found  to  be  due,  to  dismiss  the  bills. 


THE   EXPRESS   CASES.  163 

Mr.  Justice  Miller  dissenting. 

When  these  cases  were  argued  before  Circuit  Judge  McCrary  and 
m3'self  at  St.  Louis,  after  due  consideration  and  consultation  with  him 
and  Judge  Treat,  of  the  District  Court,  I  announced  certain  proposi- 
tions as  the  foundations  on  which  the  decrees  should  be  rendered. 
These  were  afterwards  entered  in  the  various  circuits  to  which  the 
cases  properly  belonged,  and,  1  believe,  in  strict  accordance  with  the 
principles  thus  announced. 

I  am  still  of  opinion  that  those  principles  are  sound,  and  I  repeat 
them  here  as  the  reasons  of  my  dissent  from  the  judgment  of  the 
court  now  pronounced  in  these  cases. 

The}'  met  the  approval  of  Judge  McCrary  when  they  were  submitted 
to  his  consideration.  They  were  filed  in  the  court  in  the  following 
language : 

"1.  I  am  of  opinion  that  what  is  known  as  the  express  business  is 
a  branch  of  the  carrying  trade  that  has,  by  the  necessities  of  com- 
merce and  the  usages  of  those  engaged  in  transportation,  become 
known  and  recognized. 

"That,  while  it  is  not  possible  to  give  a  definition  in  terms  which 
will  embrace  all  classes  of  articles  usuallj"  so  carried,  and  to  define  it 
with  a  precision  of  words  of  exclusion,  the  general  character  of  the 
business  is  suflSciently  known  and  recognized  to  require  the  court  to 
take  notice  of  it  as  distinct  from  the  transportation  of  the  large  mass 
of  freight  usually  carried  on  steamboats  and  railroads. 

"  That  the  object  of  this  express  business  is  to  carry  small  and  valu- 
able packages  rapidly,  in  such  a  manner  as  not  to  subject  them  to  the 
danger  of  loss  and  damage,  which,  to  a  greater  or  less  degree,  attends 
the  transportation  of  heavy  or  bulky  articles  of  commerce,  as  grain, 
flour,  iron,  ordinary  merchandise,  and  the  like. 

"  2.  It  has  become  law  and  usage,  and  is  one  of  the  necessities  of 
this  business,  that  these  packages  should  be  in  the  immediate  charge  of 
an  agent  or  messenger  of  the  person  or  company  engaged  in  it,  and  to 
refuse  permission  to  this  agent  to  accompany  these  packages  on  steam- 
boats or  railroads  on  which  they  are  carried,  and  to  deny  them  the 
right  to  the  control  of  them  while  so  carried,  is  destructive  of  the 
business  and  of  the  rights  which  the  public  have  to  the  use  of  the  rail- 
roads in  this  class  of  transportation. 

"3.  I  am  of  the  opinion  that  when  express  matter  is  so  confided 
to  the  charge  of  an  agent  or  messenger,  the  railroad  company  is  no 
longer  liable  to  all  the  obligations  of  a  common  carrier,  but  that  when 
loss  or  injury  occurs,  the  liability  depends  upon  the  exercise  of  due 
care,  skill,   and  diligence  on  the  part  of  the  railroad  company. 

"4.  That,  under  these  circumstances,  there  does  not  exist  on  the 
part  of  the  railroad  company  the  right  to  open  and  inspect  all  pack- 
ages so  carried,  especially  when  they  have  been  duly  closed  or  sealed 
up  by  their  owners  or  by  the  express  carrier. 

"  5.    I  am  of  the  opinion  that  it  is  the  duty  of  every  railroad  com- 


164  THE    EXPRESS    CASES, 

pan}'  to  provide  such  conve3-aiice  bj-  special  cars,  or  otherwise,  attached 
to  tlieir  freight  and  passenger  trains,  as  are  required  for  the  safe  and 
proper  transportation  of  this  express  matter  on  tlieir  roads,  and  tliat 
tlie  use  of  these  facilities  should  be  extended  on  equal  terms  to  all  who 
are  actually  and  usually  engaged  in  the  express  business. 

"  If  the  number  of  persons  claiming  the  right  to  engage  in  this  busi- 
ness at  the  same  time,  on  the  same  road,  should  become  oppressive, 
other  considerations  might  prevail ;  but  until  such  a  state  of  affairs 
is  shown  to  be  actually  in  existence  in  good  faith,  it  is  unnecessary 
to  consider  it. 

"  6.  This  express  matter  and  the  person  in  charge  of  it  should  be 
carried  by  the  railroad  company  at  fair  and  reasonable  rates  of  com- 
pensation ;  and  where  the  parties  concerned  cannot  agree  upon  what 
that  is,  it  is  a  question  for  the  courts  to  decide. 

"  7.  I  am  of  the  opinion  that  a  court  of  equit}*,  in  a  case  properly 
made  out,  has  the  authority  to  compel  the  railroad  companies  to  carry 
this  express  matter,  aud  to  perform  the  duties  in  that  respect  which  I 
have  already'  indicated,  and  to  make  such  orders  and  decrees,  and  to 
enforce  them  by  the  ordinary  methods  iu  use  necessary  to  that  end. 

"  8.  While  I  doubt  the  right  of  the  court  to  fix  in  advance  the  pre- 
cise rates  which  the  express  companies  shall  pny  and  the  railroad 
compan}'  shall  accept,  I  have  no  doubt  of  its  right  to  compel  the 
performance  of  the  service  by  the  railroad  company',  and  after  it  is 
rendered  to  ascertain  the  reasonable  compensation  and  compel  its 
payment. 

"  9.  To  permit  the  railway  company  to  fix  upon  a  rate  of  com- 
pensation which  is  absolute,  and  insist  upon  the  payment  in  advance  or 
at  the  end  of  every  train,  would  be  to  enable  tbem  to  defeat  the  just 
rights  of  the  express  companies,  to  destroy  their  business,  and  would 
be  a  practical  denial  of  justice. 

"10.  To  avoid  this  diflScult}-,  I  think  that  the  court  can  assume 
that  the  rates,  or  other  mode  of  compensation  heretofore  existing  be- 
tween any  such  companies  are  privid  facie  reasonable  and  just,  and 
can  require  the  parties  to  conform  to  it  as  the  business  progresses,  with 
the  right  to  either  part}'  to  keep  and  present  an  account  of  the  busi- 
ness to  the  court  at  stated  intervals,  and  claim  an  addition  to,  or 
rel)ate  from,  the  amount  paid.  Anil  to  secure  the  railroad  companies 
in  any  sum  which  may  be  thus  found  due  them,  a  bond  from  the  ex- 
press company-  may  be  required  in  advance. 

"11.  When  no  such  arrangement  has  heretofore  been  in  existence 
it  is  competont  for  the  court  to  devise  some  mode  of  compensation  to 
be  paid  as  the  business  progresses,  with  like  power  of  final  revision  on 
evidence,  reference  to  master,  &c. 

"12.  I  am  of  opinion  that  neither  the  statutes  nor  constitutions 
of  Arkansas  or  iMissouri  were  intended  to  affect  the  right  asserted  in 
these  cases  ;  nor  do  they  present  an}-  obstacle  to  such  decrees  as  may 
enforce  the  right  of  the  express  companies." 


THE   EXPRESS   CASES.  165 

Three  years'  reflection  and  the  renewed  and  able  argument  in  this 
court  have  not  changed  my  belief  in  the  soundness  of  these  principles. 

That  there  ma^'  be  slight  errors  in  the  details  of  the  decrees  of  the 
Circuit  Courts  made  to  secure  just  compensation  for  the  services  of  the 
railroad  companies  is  possibl}'  true,  but  I  have  not  discovered  them, 
and  the  attention  of  the  court  has  not  been  given  to  them  in  deciding 
this  case  ;  for  holding,  as  it  does,  that  the  complainants  were  entitled 
to  no  relief  whatever,  it  became  unnecessary  to  consider  the  details  of 
the  decrees. 

I  only  desire  to  add  one  or  two  observations  in  regard  to  matters 
found  in  the  opinion  of  this  court. 

1.  Tlie  relief  sought  in  these  cases  is  not  sought  on  the  ground  of 
usage  in  the  sense  that  a  long  course  of  dealing  with  the  public  has 
established  a  custom  in  the  nature  of  law.  Usage  is  only  relied  on  as 
showing  tliat  the  business  itself  has  forced  its  way  into  general  recog- 
nition as  one  of  such  necessity  to  the  public,  and  so  distinct  and 
marked  in  its  character,  that  it  is  entitled  to  a  consideration  differ- 
ent from  other  modes  of  transportation. 

2.  It  is  said  that  the  regulation  of  the  duties  of  carrying  by  the 
railroads,  and  of  the  compensation  they  shall  receive,  is  legislative  in 
its  character  and  not  judicial. 

As  to  the  duties  of  the  railroad  company,  if  they  are  not,  as  com- 
mon carriers,  under  legal  obligation  to  carry  express  matter  for  any 
one  engaged  in  that  business  in  the  manner  appropriate  and  usual  in 
such  business,  then  there  is  no  case  for  the  relief  sought  in  these  bills. 
But  if  they  are  so  bound  to  carry,  then  in  the  absence  of  any  legislative 
rule  fixing  their  compensatiou  I  maintain  that  that  compensation  is 
a  judicial  question. 

It  is,  then,  the  ordinary  and  ever-recurring  question  on  a  quantum 
meruit.  The  railroad  company  renders  the  service  which,  by  the  law 
of  its  organization,  it  is  bound  to  render.  The  express  company  re- 
fuses to  pay  for  this  the  price  which  the  railroad  company  demands, 
because  it  believes  it  to  be  exorbitant.  That  it  is  a  judicial  question  to 
determine  what  shall  be  paid  for  the  service  rendered,  in  the  absence 
of  an  express  contract,  seems  to  me  beyond  doubt. 

That  the  legislature  ynay,  in  proper  case,  fix  the  rule  or  rate  of  com- 
pensation, I  do  not  deny.  But  until  this  is  done  the  court  must  decide 
it,  when  it  becomes  matter  of  controvers}'. 

The  opinion  of  the  court,  while  showing  its  growth  and  importance, 
places  the  entire  express  business  of  the  country  wholly  at  the  mercy 
of  the  railroad  companies,  and  suggests  no  means  by  which  they  can 
be  compelled  to  do  it.  According  to  the  principles  there  announced, 
no  railroad  company  is  bound  to  receive  or  carry  an  express  messen- 
ger or  his  packages.  If  they  choose  to  reject  him  or  his  packages, 
they  can  throw  all  the  business  of  the  country  back  to  tlie  crude  condi- 
tion in  which  it  was  a  half-century  ago,  before  Harnden  estalilished 
his  local  express  between  the  large  Atlantic  cities  ;  for,  let  it  be  remem-. 


166  OLD   COLONY   RAILROAD   V.    TRIPP. 

bered  that  plaintitfs  have  never  refused  to  pa}-  the  railroad  companies 
reasonable  compensation  for  their  services,  but  those  companies  refuse 
to  carry  for  them  at  any  price  or  under  any  circumstances. 

I  am  ver\-  sure  such  a  proposition  as  this  will  not  long  be  acquiesced 
in  by  the  great  commercial  interests  of  the  country  and  by  the  public, 
whom  both  railroad  companies  and  the  express  men  are  intended  to 
serve.  If  other  courts  should  follow  ours  in  this  doctrine,  the  evils  to 
ensue  will  call  for  other  relief. 

It  is  in  view  of  amelioration  of  these  great  evils  that,  in  dissenting 
here,  I  announce  the  principles  which  I  earnestly  believe  ought  to  con- 
trol the  actions  and  the  rights  of  these  two  great  public  services. 

Mr.  Justice  Field  dissenting. 

I  agree  with  Mr.  Justice  Miller  in  the  positions  he  has  stated, 
although  in  the  cases  just  decided  I  think  the  decrees  of  the  courts 
below  require  modification  in  several  particulars  ;  they  go  too  far. 
But  I  am  clear  that  railroad  companies  are  bound,  as  common  carriers, 
to  accommodate  the  public  in  tlie  transportation  of  goods  according  to 
its  necessities,  and  through  the  instrumentalities  or  in  the  mode  best 
adapted  to  promote  its  convenience.  Among  these  instrumentalities 
express  companies,  by  the  mode  in  which  their  business  is  conducted, 
are  the  most  important  and  useful. 

Mr.  Justice  Matthews  took  no  part  in  the  decision  of  these  cases.^ 


OLD   COLONY   RAILROAD   v.   TRIPP. 
Supreme  Judicial  Court  of  Massachusetts,  1 

[147  Mass.  35 ;  17  N.  E.  89.] 

W.  Allen,  J.,  delivered  the  opinion  of  the  court. 

Whatever  implied  license  the  defendant  may  have  had  to  enter  the 
plaintiff's  close  had  been  revoked  by  the  regulations  made  by  the 
plaintiff  for  the  management  of  its  business  and  the  use  of  its  property 
in  its  business.  The  defendant  entered  under  a  claim  of  right,  and 
can  justify  his  entry  only  by  showing  a  right  superior  to  that  of  the 
plaintiff.  The  plaintiff  has  all  the  rights  of  an  owner  in  possession, 
except  such  as  are  inconsistent  with  the  public  use  for  which  it  holds 
its  franchise;  that  is,  with  its  duties  as  a  common  carrier  of  persons 
and  merchandise.  As  concerns  the  case  at  bar,  the  plaintiff  is  obliged 
to  be  a  common  carrier  of  passengers;  it  is  its  duty  to  furnish  rea- 
sonable facilities  and  accommodations  for  the  nse  of  all  persons  who 
seek  for  transportation  over  its  road.  It  provided  its  depot  for  the 
use  of  persons  who  were  transported  on  its  cars  to  or  from  the  sta- 

1  Ace.  Pfister  v.  R.  R.,  70  Cal.  169  ;  Louisville,  &c.  Rv.  v.  Keefer,  146  Ind  21  ;  44 
N.  E.  796;  Sargeut  v.  R.  R.,  115  Mass.  416:  Exp.  Co.  v.  R.  R.,  Ill  N.  C.  463;  16  S. 
E.  39.3.  —  Ei>. 


OLD   COLONY   RAILROAD   V.   TKIPP.  1G7 

tion,  and  holds  it  for  that  use;  and  it  has  no  right  to  exclude  from  it 
persons  seeking  access  to  it  for  the  use  for  which  it  was  intended  and 
is  maintained.  It  can  subject  the  use  to  rules  and  regulations ;  but 
by  statute,  if  not  by  common  law,  the  regulations  must  be  such  as  to 
secure  reasonable  and  equal  use  of  the  premises  to  all  having  such 
right  to  use  them.  See  Pub.  Stat.  chap.  112,  §  188 ;  Fitchburg  Railroad 
r.  Gage,  12  Gray,  393;  Spofford  v.  Boston  &  Maine  Railroad,  128 
Mass.  326.  The  station  was  a  passenger  station.  Passengers  taking 
and  leaving  the  cars  at  the  station,  and  persons  setting  down  passen- 
gers or  delivering  merchandise  or  baggage  for  transportation  from 
the  station,  or  taking  up  passengers  or  receiving  merchandise  that 
had  been  transported  to  the  station,  had  a  right  to  use  the  station 
buildings  and  grounds,  superior  to  the  right  of  the  plaintiff  to  exclu- 
sive occupancy.  All  such  persons  had  business  with  the  plaintiff, 
which  it  was  bound  to  attend  to  in  the  place  and  manner  which  it  had 
provided  for  all  who  had  like  business  with  it. 

The  defendant  was  allowed  to  use  the  depot  for  any  business  that 
he  had  with  the  plaintiff.  But  he  had  no  business  to  transact  with 
the  plaintiff.  He  had  no  merchandise  or  baggage  to  deliver  to  the 
plaintiff  or  to  receive  from  it.  His  purpose  was  to  use  the  depot  as  a 
place  for  soliciting  contracts  with  incoming  passengers  for  the  trans- 
portation of  their  baggage.  The  railroad  company  may  be  under 
obligation  to  the  passenger  to  see  that  he  has  reasonable  facilities  for 
procuring  transportation  for  himself  and  his  baggage  from  the  station, 
where  his  transit  ends.  What  conveniences  shall  be  furnished  to 
passengers  within  the  station  for  that  purpose  is  a  matter  wholly  be- 
tween them  and  the  company.  The  defendant  is  a  stranger  both  to 
the  plaintiff  and  to  its  passengers,  and  can  claim  no  rights  against  the 
plaintiff  to  the  use  of  its  station,  either  in  his  own  right  or  in  the 
right  of  passengers.  The  fact  that  he  is  willing  to  assume  relations 
with  any  passenger,  which  will  give  him  relations  with  the  plaintiff 
Involving  the  right  to  use  the  depot,  does  not  establish  such  rela- 
tions or  such  right;  and  the  right  of  passengers  to  be  solicited  by 
drivers  of  hacks  and  job-wagons  is  not  such  as  to  give  to  all  such 
drivers  a  right  to  occupy  the  platforms  and  depots  of  railroads. 
If  such  right  exists,  it  exists,  under  the  statute,  equally  for  all;  and 
railroad  companies  are  obliged  to  admit  to  their  depots,  not  only 
persons  having  business  there  to  deliver  or  receive  passengers  or 
merchandise,  but  all  persons  seeking  such  business,  and  to  furnish 
reasonable  and  equal  facilities  and  conveniences  for  all  such. 

The  only  case  we  have  seen  which  seems  to  lend  any  countenance 
to  the  position  that  a  railroad  company  has  no  right  to  exclude  per- 
sons from  occupying  its  depots  for  the  purpose  of  soliciting  the 
patronage  of  passengers  is  Markham  v.  Brown,  8  N.  H.  523,  in 
which  it  was  held  that  an  innholder  had  no  right  to  exclude  from  his 
inn  a  stagedriver  who  entered  it  to  solicit  guests  to  patronize  his 
stage  iu  opposition  to  a  driver  of  a  rival  line  who  had  been  admitted 


168  OLD   COLONY   RAILROAD   V.   TKIPP. 

for  a  like  purpose.  It  was  said  to  rest  upon  the  right  of  the  passen- 
gers rather  than  that  of  the  driver.  However  it'  may  be  with  a  guest 
at  an  inn,  we  do  not  think  that  passengers  in  a  railroad  depot  have 
such  possession  of  a  right  in  the  premises  as  will  give  to  carriers  of 
baggage,  soliciting  their  patronage,  an  implied  license  to  enter,  irrev- 
ocable by  the  railroad  company.  Barney  r.  Oyster  Bay  H.  Steam- 
boat Co.  67  N.  Y.  301,  and  Jencks  v.  Coleman,  2  Sumn.  221,  are 
oases  directly  in  point.  See  also  Com.  v.  Power,  7  Met.  596,  and 
Harris  v.  Stevens,  31  Vt.  79. 

It  is  argued  that  the  statute  gave  to  the  defendant  the  same  right  to 
enter  upon  and  use  the  buildings  and  platforms  of  the  plaintiff,  which 
the  plaintiff  gave  to  Porter  &  Sons.  The  plaintiff  made  a  contract 
with  Porter  &  Sons  to  do  all  the  service  required  by  incoming  passen- 
gers, in  receiving  from  the  plaintiff,  and  delivering  in  the  town,  bag- 
gage and  merchandise  brought  by  them;  and  prohibited  the  defendant 
and  all  other  owners  of  job-wagons  from  entering  the  station  for  the 
purpose  of  soliciting  from  passengers  the  carriage  of  their  baggage 
and  merchandise,  but  allowed  them  to  enter  for  the  purpose  of  deliv- 
ering baggage  or  merchandise,  or  of  receiving  any  for  which  they  had 
orders.  Section  188  of  the  Pub.  Stats,  chap.  112,  is  in  these  words: 
"Every  railroad  corporation  shall  give  to  all  persons  or  companies 
reasonable  and  equal  terms,  facilities,  and  accommodations  for  the 
transportation  of  themselves,  their  agents,  and  servants,  and  of  any 
merchandise  and  other  property,  upon  its  railroad,  and  for  the  use 
of  its  depot  and  other  buildings  and  grounds,  and,  at  any  point 
where  its  railroad  connects  with  another  railroad,  reasonable  and 
equal  terms  and  facilities  of  interchange."  A  penalty  is  prescribed 
in  §  191  for  violations  of  the  statute.  The  statute,  in  providing 
that  a  railroad  corporation  shall  give  to  all  persons  equal  facilities 
for  the  use  of  its  depot,  obviously  means  a  use  of  right.  It  does 
not  intend  to  prescribe  who  shall  have  the  use  of  the  depot,  but 
to  provide  that  all  who  have  the  right  to  use  it  shall  be  furnished 
by  the  railroad  company  with  equal  conveniences.  The  statute 
applies  only  to  relations  between  railroads  as  common  carriers, 
and  their  patrons.  It  does  not  enact  that  a  license  given  by  a 
railroad  company  to  a  stranger  shall  be  a  license  to  all  the  world. 
If  a  railroad  company  allows  a  person  to  sell  refreshments  or  news- 
papers in  its  depots,  or  to  cultivate  flowers  on  its  station-grounds,  the 
statute  does  not  extend  the  same  right  to  all  persons.  If  a  railroad 
company,  for  the  convenience  of  its  passengers,  allows  a  baggage 
expressman  to  travel  in  its  cars  to  solicit  the  carriage  of  the  baggage 
of  passengers,  or  to  keep  a  stand  in  its  depot  for  receiving  orders 
from  passengers,  the  statute  does  not  require  it  to  furnish  equal 
facilities  and  conveniences  to  all  persons.  The  fact  that  the  defend- 
ant, as  the  owner  of  a  job-wagon,  is  a  common  carrier,  gives  bin" 
no  special  right  under  the  statute;  it  only  shows  that  it  is  possible 
for  him  to  perform  for  passengers  the  service  which  he  wishes  to 
solicit  of  them. 


OLD   COLONY   EAILEOAD    V.   TRIPP.  1G9 

The  English  Railway  &  Canal  Traffic  Act,  17  &  18  Vict.  chap.  31, 
requires  every  railway  and  canal  company  to  afford  all   reasonable 
facilities  for  traffic,  and  provides  that  "no  such  company  shall  make 
or  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in 
favor  of  any  particular  person  or  company,  or  any  particular  descrip- 
tion of  traffic,  in  any  respect  whatsoever."    Marriott  c.  London  &  S. 
W.  R.  Co.  1  C.  B.  X.  S.  499,  was  under  this  statute.     The  complaint 
was  that  the  omnibus  of  Marriott,  in  which  he  brought  passengers  to 
the  railroad,  was  excluded  by  the  railway  company  from  its  station 
grounds,  when   other   omnibuses,    which   brought  passengers,    were 
admitted.     An  injunction  was  ordered.     Beadell  v.  Eastern  Counties 
R.   Co.  2  C.  B.  N.  S.  509,  was  a  complaint,  under  the  statute,  that 
the   railway  company  refused   to    allow  the   complainant  to  ply  for 
passengers  at  its  station,   it  having   granted  the  exclusive  right  of 
taking  up  passengers  within  the  station,  to  one  Clark.     The  respond- 
ent allowed  the  complainant's  cabs  to  enter  the  station  for  the  purpose 
of  putting  down  passengers,  and  then  required  him  to  leave  the  yard. 
An  injunction  was  refused.     One  ground  on  which  the  case  was  dis- 
tinguished from  Marriott's  was  that  the  complainant  was  allowed  to 
enter  the  yard  to  set  down  passengers,  and  was  only  prohibited  from 
remaining  to  ply  for  passengers.     See  also  Painter  r.  London,  B.  & 
S.  C.  R.  Co.  2  C.  B.  N.  S.  702;  Barker  '■.  Midland  R.  Co.  18  C.  B. 
46.     Besides  Marriott's  Case,  siqyra,  Palmer  v.  London,  B.  &  S.  G. 
R.   Co.   L.  R.  6  C.  P.   194,  and  Parkinson  v.  Great  Western  R.  Co. 
L.  R.  G  C.  P.  554,  are  cases  in  which  injunctions  were  granted  under 
the  statute:  in  the  former  case,  for  refusing  to  admit  vans  containing 
goods  to  the  station-yard  for  delivery  to  the  railway  company  for 
transportation  by   it;   in  the  latter  case,  for  refusing  to  deliver  at 
the  station,  to  a  carrier  authorized  to  receive  them,  goods  which  had 
been  transported  on  the  railroad. 

VTe  have  not  been  referred  to  any  decision  or  dictum,  in  England 
or  in  this  country,  that  a  common  carrier  of  passengers  and  their 
basgage  to  and  from  a  railroad  station  has  any  right,  without  the 
consent  of  the  railroad  company,  to  use  the  gi-ounds,  buildings,  and 
platforms  of  the  station  for  the  purpose  of  soliciting  the  patronage 
of  passengers :  or  that  a  regulation  of  the  company  which  allows  such 
use  by  particular  persons,  and  denies  it  to  others,  violates  any  right 
of  the  latter.  Cases  at  common  law  or  under  statutes  to  determine 
whether  railroad  companies  in  particular  instances  gave  equal  terms 
and  facilities  to  different  parties  to  whom  they  furnished  transporta- 
tion, and  with  whom  they  dealt  as  common  carriers,  have  no  bearing 
on  the  case  at  bar.  The  defendant,  in  his  business  of  solicitor  of  the 
patronage  of  passengers,  held  no  relations  with  the  plaintiff  as  a  com- 
mon carrier,  and  had  no  right  to  use  its  station-grounds  and  buUdings. 
A  majority  of  the  court  are  of  the  opinion  that  there  should  be  — 

Judgment  on  the  verdict^ 

1  Ace.  Brown  c.  N.  Y  C,  i  H.  R.  E.  R.,  27  N.  T.  Sup.  69.  —Ed. 


170  OLD   COLONY   RAILROAD   V.   TRIPP. 

Field,  J.'^  The  Chief  Justice,  Mr.  Justice  Devens,  and  myself 
thiuk  that  our  statutes  should  receive  a  different  construction  from 
that  given  to  them  by  a  majority  of  the  court.   .   .   . 

The  provision  that  every  railroad  corporation  shall  give  to  all  per- 
sons or  companies  reasonable  and  equal  terms,  facilities,  and  accom- 
modations for  the  use  of  the  depot  and  other  buildings  and  grounds, 
must  include  the  use  of  the  depot  and  other  buildings  and  grounds  for 
receiving  passengers  and  merchandise  from  a  railroad  at  the  terminus 
where  the  transportation  on  the  railroad  ends,  as  well  as  for  deliver- 
ing passengers  and  merchandise  to  a  railroad  at  the  terminus  where 
such  transportation  begins.  As  the  last  clause  of  the  section  makes 
provision  for  carriers  connecting  by  railroad,  we  think  that  the  pre- 
ceding clause  was  intended  to  make  provision  for  other  connecting 
carriers,  and  to  include  public  or  common  carriers  as  well  as  private 
carriers  actually  employed  by  passengers  or  by  the  owners  or  con- 
signees of  merchandise.  Stages  and  expresses  are  the  only  common 
carriers  of  passengers  and  of  merchandise  to  and  from  many  places  in 
the  Commonwealth,  and,  in  connection  with  railroads,  often  form  a 
continuous  line  of  transportation.  The  statute,  we  think,  was  in. 
tended  to  prevent  unjust  discrimination  by  a  railroad  corporation  be- 
tween common  carriers  connected  with  it  in  any  manner,  and  to 
require  that  the  railroad  corporation  should  furnish  to  such  carriers 
reasonable  and  equal  terms,  facilities,  and  accommodations  in  the  use 
of  its  depot  and  other  buildings  and  grounds  for  the  interchange  of 
traffic. 

A  railroad  corporation  can  make  reasonable  rules  and  regulations 
concerning  the  use  of  its  depot  and  other  buildings  and  grounds,  and 
can  exclude  all  persons  therefrom  who  have  no  business  with  the 
railroad,  and  it  can  probably  prohibit  all  persons  from  soliciting 
business  for  themselves  on  its  premises.  Whatever  may  be  its  right 
to  exclude  all  common  carriers  of  passengers  or  of  merchandise  from 
its  depot  and  grounds,  who  have  not  an  order  to  enter,  given  by 
persons  who  are,  or  who  intend  to  become,  passengers,  or  who  own 
or  are  entitled  to  the  possession  of  merchandise  which  has  been  or  is 
to  be  transported,  it  cannot  arbitrarily  admit  to  its  depot  and  grounds 
one  common  carrier  and  exclude  all  others.  The  effect  of  such  a 
regulation  would  be  to  enable  a  railroad  corporation  largely  to  con- 
trol the  transportation  of  passengers  and  merchandise  be3'ond  its  own 
line  and  to  establish  a  monopoly  not  granted  by  its  charter  which 
might  be  solely  for  its  own  benefit  and  not  for  the  benefit  of  the 
public.  Such  a  regulation  does  not  give  "to  all  persons  or  companies 
reasonable  and  equal  terms,  facilities,  and  accommodations  .  .  .  for 
the  use  of  its  depot  and  other  buildings  and  grounds,"  in  the  trans- 
portation of  persons  and  property.  See  Parkinson  v.  Great  Western 
R.  Co.,  L.  R.  6  C.  P.  554;  Palmer  v.  London,  B.  &  S.  C.  R.  Co.  Id. 

^  Part  of  this  opinion  is  omitted.  —  Ed. 


GEISWOLD   V.    WEBB.  171 

194 ;  New  England  Express  Co.  v.  Maine  Central  R.  Co.  57  Me. 
188.  .   .  . 

It  is  undoubtedly  a  convenience  to  passengers  on  a  railroad,  that 
common  carriers  of  passengers,  or  of  baggage  and  other  merchan- 
dise, should  be  in  waiting  on  the  arrival  of  trains  at  a  station,  al- 
though no  order  requiring  the  attendance  of  such  carriers  has  been 
previously  given. 

AVhile  the  statute  requiring  a  railroad  corporation  to  give  to  all 
persons  and  companies  reasonable  and  equal  terms,  facilities,  and 
accommodations  for  the  use  of  its  depot  and  other  buildings  and 
grounds  must,  from  the  nature  of  the  subject,  be  so  construed  as  to 
permit  the  corporation  to  make  such  reasonable  regulations  as  are 
necessary  to  enable  it  to  perform,  without  inconvenience,  its  duties 
as  a  common  carrier,  and  such  as  the  size  and  condition  of  its  depot 
and  other  buildings  and  grounds  require,  yet  the  facts  stated  in  the  re- 
port cannot  be  held  sufficient  to  warrant  the  plaintiff  in  admitting  one 
company  of  expressmen  to,  and  in  excluding  all  others  from,  the  ad- 
vantages of  bringing  express  wagons  within  its  grounds,  and  of 
accepting  or  of-  soliciting  employment  as  a  common  carrier  of  bag- 
gage from  the  passengers  arriving  at  its  depot.  The  report  does  not 
show  that  any  inconvenience  to  the  railroad  company,  or  to  the  public 
using  the  railroad,  was  occasioned  by  the  defendant  entering  the 
grounds  of  the  company  for  the  purpose  of  soliciting  employment  as 
a  common  carrier  of  baggage.  Upon  the  facts,  as  they  appear  in 
the  report,  it  cannot  be  said  that,  within  any  reasonable  construction 
of  the  statute,  reasonable  and  equal  facilities  were  granted  to  the  de- 
fendant and  to  Porter  &  Sons ;  or  that  any  necessity  existed  for  giving 
a  preference  to  the  latter. 


GRISWOLD   V.   WEBB. 
Supreme  Court  op  Rhode  Island,  1889. 

[16  R.  I.  649:  19  Atl.  143.] 

Stiness,  J.  The  plaintiff  is  owner  of  Commercial  Wharf,  in  New- 
port, a  part  of  which  is  leased  to  the  Newport  &  Wickford  Railroad 
&  vSteam-Boat  Company  as  a  terminus.  To  preserve  order  upon 
the  wharf,  stands  are  let  for  hackney  carriages,  and  the  following 
rules  are  prescribed  for  its  use:  "Rules  for  Hackmen  and  Others. 
(1)  Drivers  of  hackney  carriages  shall  remain  on  or  near  their 
carriages,  except  when  carrying  baggage  to  or  from  them.  (2)  No 
one  shall  occupy  a  hack-stand  or  express-stand  except  the  licensee 
or  his  emploj^es.  (3)  No  hackney  carriage  or  express  wagon  shall 
stand  on  the  space  to  the  eastward  of  the  restaurant  building,  or  on 
the  road-ways,  except  on  licensed  hack-stands,  even  though  ordered 
in  advance  by  a  passenger."     East  of  the  restaurant  building  is  a 


172  GEISWOLD   V.   WEBB. 

plank  walk  for  passengers,  and  east  of  the  walk  a  space  is  reserved 
for  private  carriages.  The  rest  of  the  wharf  is  used  for  sidewalks, 
road-ways,  and  buildings.  The  defendant,  driver  of  a  hackney  car- 
riage in  Newport,  went  to  the  wharf,  on  the  day  in  question,  for  a 
lady  who  was  to  arrive  in  the  boat,  as  he  had  been  ordered  to  do  by 
the  passenger,  or  some  one  in  her  behalf.  He  backed  his  hack  a8 
near  as  he  could  to  the  space  reserved  for  private  carriages,  when  he 
was  ordered  to  leave  the  wharf  by  the  superintendent,  upon  the  ground 
that  he  had  no  right  to  be  there,  having  no  license  from  the  owner. 
The  plaintiff  claimed  that  the  wheels  of  the  defendant's  carriage  were 
backed  on  to  the  plank  walk,  but,  upon  all  the  testimony,  we  are  not 
satisfied  this  was  so,  or,  if  so,  that  it  was  anything  more  than  acci- 
dental. At  any  rate,  the  order  to  leave  the  wharf  was  not  put  upon 
this  ground,  but  because  he  had  no  right  there.  Upon  receiving  the 
order  to  leave,  the  defendant  stated,  both  to  the  plaintiff  and  to  the 
superintendent  of  the  wharf,  that  he  had  been  ordered  there  for  a 
passenger,  and  he  refused  to  leave.  The  plaintiff  then  called  a 
policeman,  who  moved  the  carriage  to  another  place  in  the  road-way, 
where  the  defendant  remained  until  the  boat  arrived,  when  he  took 
his  passenger  and  drove  away.  The  passenger  was  an  infirm  lady, 
who  had  been  accustomed  to  ride  with  the  defendant,  and  one  who 
was  obliged  to  use  a  stool,  which  he  had  with  him,  to  aid  her  in 
getting  into  the  carriage.  The  plaintiff  sues  in  trespass,  and  the 
defendant  justifies  under  a  right  as  servant  of  the  passenger.  The 
question  is  whether  the  defendant  had  the  right  to  enter  and  remain 
upon  the  wharf  to  take  the  passenger,  notwithstanding  the  rules  and 
the  order  to  leave.  We  understand  the  rules  to  forbid  an  unlicensed 
hackney  carriage  to  stand  upon  the  wharf  at  all ;  for  none  are  alloAved 
to  stand  in  the  road-ways,  except  on  the  licensed  stands,  and  none  are 
allowed  to  occupy  a  stand  without  a  license.  But  the  wharf  is  leased 
to  a  common  carrier  of  passengers,  with  a  provision  that  the  space 
east  of  the  restaurant  shall  be  reserved  for  the  use  of  private  car- 
riages of  passengers  arriving  at  the  wharf. 

The  question  of  right,  therefore,  is  the  same  as  it  would  be  between 
passengers  and  a  company  which  owns  its  terminus.  While  such 
ownership  carries  with  it  a  riglit  of  control,  in  most  respects  the  same 
as  in  private  property,  a  railroad  station  or  steam-boat  wharf  is,  to 
some  extent,  a  public  place.  The  public  have  the  right  to  come  and 
go  there  for  the  purpose  of  travel;  for  taking  and  leaving  passengers; 
and  for  other  matters  growing  out  of  the  business  of  the  company  as 
a  common  carrier.  But  the  company  has  the  right  to  sa}^  that  no 
business  of  any  other  character  shall  be  carried  on  within  the  limits 
of  its  property.  It  has  the  right  to  say  that  no  one  shall  come  there 
to  solicit  trade,  simply  because  it  may  be  convenient  for  travellers, 
and  so  to  say  that  none,  except  those  whom  it  permits,  shall  solicit  in 
the  business  of  hacking  or  expressing.  When  notice  of  such  prohi- 
bition has  been  given,  the  license  which  otherwise  might  be  implied 


GEISWOLD    V.   WEBB.  lT3 

is  at  an  end,  and  it  is  the  duty  of  persons  engaged  in  any  such  busi- 
ness to  heed  the  notice  and  to  retire  from  the  premises.  Baiuey  v. 
Steam-Boat  Co.,  67  N.  Y.  301;  Com.  v.  Power,  7  Met.  596. 

But,  while  this  is  so,  the  company  cannot  deprive  a  passenger  of 
the  ordinary  rights  and- privileges  of  a  traveller,  among  which  is  the 
privilege  of  being  transported  from  the  terminus  in  a  reasonably  con- 
venient and  usual  way.  A  company  cannot  compel  a  passenger  to 
take  one  of  certain  carriages,  or  none  at  all ;  nor  impose  unreasonable 
restrictions,  which  will  amount  to  that.  If  a  passenger  orders  a  car- 
riage to  take  him  from  the  terminus,  such  carriage  is,  j^ro  hue  vice^ 
a  private  carriage;  not  in  the  sense  that  the  passenger  has  a  special 
property  in  it,  so  as  to  be  liable  for  the  driver's  negligence,  but  in 
the  sense  that  it  is  not  "standing  for  hire."  Masterson  v.  Short,  33 
How.  Pr.  481.  The  driver  is  not  engaged  in  his  vocation  of  solicit- 
ing patronage,  but  is  waiting  to  take  one  with  whom  a  contract  has 
already  been  made.  No  question  is  made  that  a  passenger  may  have 
his  own  carriage  enter  the  premises  of  a  carrier  to  take  him  away; 
but  to  say  that  one  who  is  not  so  fortunate  as  to  own  a  carriage  shall 
not  be  allowed  to  call  the  one  he  wants,  because  it  is  a  hackney  car- 
riage, would  be  a  discrimination  intolerable  in  this  country.  Yet  this 
is  really  the  plaintiff's  claim.  Every  passenger  has  the  right,  upon 
the  premises  of  the  carrier,  to  reasonable  and  usual  facilities  for 
arrival  and  departure;  and,  so  far  as  this  includes  the  right  to  be 
taken  to  and  from  a  station  or  wharf,  it  is  immaterial  whether  he  goes 
in  a  private  or  a  hired  carriage.  Decisions  upon  this  question  have 
not  been  numerous,  and  we  know  of  but  one  directly  in  point,  although 
in  others  there  are  dicta  which  indicate  what  is  understood  to  be  the 
law.  Summitt  r.  State,  8  Lea,  413,  was  a  conviction  of  the  defend- 
ant, a  watchman  in  a  depot,  for  assault  in  ejecting  a  hackman  there- 
from. The  company  had  forbidden  hackmen  to  enter  the  building. 
Notwithstanding  this  rule,  the  right  of  a  hackman  to  go  into  a  part  of 
the  depot  to  obtain  the  baggage  of  a  passenger,  whose  check  he  had, 
was  not  controverted.  The  prosecutor,  having  the  check  of  a  passen- 
ger, was  in  another  part  of  the  depot;  but  it  was  held  that  the  defend- 
ant was  not  justified  in  ejecting  him  altogether  from  the  station,  and 
the  conviction  was  sustained.  Tobin  v.  Railroad  Co.,  59  Me.  183, 
was  an  action  for  damages  by  a  hackman  who  was  injured  by  step- 
ping on  a  defective  platform  when  leaving  a  passenger  at  the  station. 
The  court  say:  "The  hackman,  conveying  passengers  to  a  railroad 
depot  for  transportation,  and  aiding  them  to  alight  upon  the  platform 
of  the  corporation,  is  as  rightfully  upon  the  same  as  the  passengers 
alighting."  In  this  case  it  was  not  claimed  that  any  rules  had  been 
violated.  The  recent  case  of  Railroad  Co.  v.  Tripp,  147  Mass.  35, 
was  an  action  of  trespass  against  an  expressman  who  solicited  patron- 
age in  the  plaintiff's  station,  contrary  to  its  rules.  "W.  Allex,  J., 
says:  ''Passengers  taking  and  leaving  the  cars  at  the  station,  and 
persons  setting  down  passengers  or  delivering  merchandise  or  bag- 


174  GKISWOLD   V.   WEBB. 

gage  for  transportation  from  the  station,  or  taking  up  passengers  or 
receiving  merchandise  that  had  been  transported  to  the  station,  had  a 
right  to  use  the  station  buildings  and  grounds,  superior  to  the  right 
of  the  plaintiff  to  exclusive  occupancy.  All  such  persons  had  busi- 
ness with  the  plaintiff,  which  it  was  bound  to  attend  to  in  the  place 
and  manner  which  it  had  provided  for  all  who  had  like  business  with 
it."  A  statute  of  Massachusetts  prescribes  that  railroad  corporations 
shall  give  to  all  persons  equal  facilities  for  the  use  of  its  depot. 
The  court  held  that  this  statute  applied  only  to  the  relations  between 
common  carriers  and  their  patrons,  or  those  who  had  the  right  to  use 
the  station.  It  did  not  give  the  defendant  the  right  to  go  there  to 
solicit  business  because  another  had  the  right.  See,  also,  Harris  v. 
Stevens,  31  Vt.  79.  In  Markham  v.  Brown,  8  N.  H.  523,  an  action 
of  trespass,  brought  by  an  innkeeper  against  a  stage  driver,  the 
court  say  the  defendant  had  clearly  a  right  "to  go  to  the  plaintiff's 
inn  with  travellers,  and  he  might  of  course  lawfully  enter  it  for  the 
purpose  of  leaving  their  baggage  and  receiving  his  fare."  The  case 
most  nearly  in  support  of  the  plaintiff's  contention  of  those  we  have 
seen  is  Barker  v.  Railroad  Co.,  18  C.  B.  46,  where  it  was  held  that  an 
omnibus  proprietor,  carrying  passengers  to  and  from  a  station,  could 
not  maintain  an  action  for  a  refusal  to  allow  him  to  drive  his  vehicle 
into  the  station  yard.  As  the  proprietor  was  not  using  or  seeking  to 
use  the  railway,  it  was  considered  that  the  company  owed  him  no 
duty.  Jervis,  C.  J.,  said  a  passenger  would,  no  doubt,  have  a  right 
of  action,  if  unduly  obstructed,  but  a  violation  of  duty  to  him  would 
not  give  an  action  to  the  plaintiff.  It  is  to  be  observed  that  the 
recent  English  cases  are  mainly  controlled  by  statute  (17  &  18  Vict. 
c.  31),  to  which  the  Massachusetts  statute  is  similar.  They  relate 
chiefly  to  the  question  whether  a  prohibition  to  one,  to  ply  for  passen- 
gers within  a  station,  when  the  same  right  is  granted  to  another,  ia 
an  undue  preference,  under  the  statute.  It  is  generally  held  that  it 
is  not.  See  In  re  Beadell,  2  C.  B.  (N.  S.)  509;  In  re  Painter,  Id. 
702;  Hole  v.  Digby,  27  Wkly.  Rep.  884.  In  the  latter  case  it  seems 
to  be  conceded  that  one  going,  bona  fide,  to  meet  a  passenger,  would 
not  be  guilty  of  trespass.  In  re  Marriott,  1  C.  B.  (N.  S.)  499,  the 
defendant  company  was  ordered  to  admit  the  complainant's  omnibus 
into  the  station  to  receive  and  set  down  passengers  and  goods,  as 
other  public  vehicles  were  admitted.  Upon  the  question  before  us, 
we  do  not  think  these  cases  are  in  conflict  with  the  views  we  have 
above  expressed.  The  case  at  bar  differs  from  Barker  v.  Railroad 
Co.,  siqyra,  in  this:  that  here  the  hackney  driver  is  not  plaintiff, 
seeking  to  recover  damages  for  the  revocation  of  a  license  to  go  upon 
the  wharf,  or  for  a  breach  of  duty  to  another,  but  the  defendant 
against  an  alleged  trespass,  who  relied  upon  his  right  as  servant  of 
the  other  to  justify  his  being  there.  We  think  the  justification  is 
sufficient.  It  is  substantially  given  by  the  terms  of  the  lease  to  the 
eteam-boat  company.     This  does  not  deprive  the  owner  of  the  general 


MONTANA   UNION   RY.   V.   LANGLOIS.  175 

control  of  his  wharf,  nor  interfere  with  his  reasonable  rules  for  its 
management.  It  simply  secures  to  a  passenger  the  common  privilege 
of  a  passenger,  and  enables  the  hackney  driver  to  shield  himself  from 
an  apparent  violation  of  the  rules  only  when  he  is  acting,  bo7ia  fide, 
as  the  servant  of  such  passenger.  This  qualification  guards  the 
owner  from  an  incursion  of  unlicensed  drivers  under  a  mere  pretense 
of  serving  passengers,  and  also  confines  the  right  of  soliciting  busi- 
ness on  his  premises  to  those  whom  he  may  permit.  We  give  judg- 
ment for  the  defendant  for  his  costs.^ 

1  Ace.  Indian  River  S.  B.  Co.  v.  East  Coast  Transp.  Co.,  28  Fla.  387,  10  So.  480; 
McConnell  v.  Pedigo,  92  Ky.  465,  18  S.  W.  15 ;  Kalamazoo  Hack  &  Bus  Co.  v.  Sootsma, 
84  Mich  194,  47  N.  W.  667 ;  Cravens  v.  Rodgers,  101  Mo.  247,  14  S.  W.  106;  State  v. 
Reed,  76  Miss.  211.  — Ed. 


176  KATES    V.    ATLANTA    BAGGAGE    AND    CAB   CO. 


KATES  V.  ATLANTA   BAGGAGE   AND    CAB  CO. 
Supreme  Court  of  Georgia,  1899. 

[107  Ga.  636.1] 

Little,  J.  .  .  .  The  evidence  was  in  direct  conflict  on  many  points. 
As  to  the  triitli  of  the  allegations  about  which  the  evidence  is  con- 
flicting, it  is,  so  far  as  we  are  concerned,  settled  by  the  determination 
of  the  judge,  and  the  right  of  the  petitioner  to  have  the  judgment  re- 
fusing the  injunction  reversed  must  depend  on  the  application  of  legal 
principles  to  such  of  the  allegations  as  are  not  contested  by  evidence, 
and  these  are  :  First,  that  the  defendants  permit  the  cab  companj-  to 
enter  the  passenger-trains  before  reaching  the  cit}',  for  the  purpose  of 
soliciting  baggage,  and  refuse  the  same  privilege  to  the  petitioner. 
Second,  that  the  servants  of  the  cab  compaii}'  are  allowed  access  to 
the  passenger-station  for  the  purpose  of  soliciting  patronage  and  for 
more  conveniently  attending  to  its  business,  and  this  privilege  is  re- 
fused to  petitioner.  Third,  that  the  privilege  of  using  an  office  in  the 
baggage-room  of  the  defendants  for  the  transaction  of  its  business  is 
granted  to  the  cab  company  and  refused  to  Kates.  Fourth,  the  privi- 
lege of  checking  the  l)aggage  of  prospective  passengers  at  hotels  and 
residences  in  advance  of  deliver}'  of  the  baggage  at  the  passenger-sta- 
tion ;  each  of  which  privileges  is  refused  to  petitioner.  It  cannot 
successfully  be  maintained  that  the  grant  of  these  privileges  to  the  cab 
company  is  in  violation  of  law,  nor  do  the  concessions  of  themselves 
create  a  monopoly,  nor  are  they  in  any  sense  an  interference  with  the 
right  of  the  travelling  public.  On  the  contrary,  it  will  be  recognized 
that  the  exercise  of  the  facilities  named  tends  to  the  public  convenience 
and  the  prompt  and  safe  handling  of  the  baggage  of  the  passenger.  Un- 
der no  view  of  the  case  would  the  petitioner  be  entitled  to  the  aid  of  tlie 
courts  in  restricting  these  conveniences  and  lessening  the  facilities  for 
the  safe  and  convenient  handling  of  the  effects  of  a  passenger.  The 
law  would  hardly  undertake  to  declare  that  a  railroad  company  should 
not,  if  it  so  desired,  through  its  representative  deliver  to  one  at  his 
home  in  the  city  of  Atlanta  a  ciieck  insuring  the  delivery  of  his  trunk 
in  the  city  of  New  York  for  which  he  was  bound,  and  subject  the  pas- 
senger to  the  inconvenience  of  personally  appearing  at  the  baggage- 
room,  pointing  out  his  trunk,  and  there  receiving  the  railroad  company's 
check.  We  know  of  no  ol)ligation  which  requires  that  a  railroad  com- 
pany shall  fin-nish  such  a  facility,  hut  certainly  tliere  can  be  no  reason  to 
forbid  its  doing  so,  if  it  will ;  and  likewise  the  privilege  afforded  to  an 
incoming  passenger  before  arrival  to  deliver  to  a  responsible  person 
the  check  for  his  baggage,  with  an  obligation  on  the  part  of  the  latter 
to  deliver  the  same  at  tlie  residence  or  hotel  of  tlie  passenger,  infringes 
nobody's  rights,  but  does  promote  the  convenience  of  the  travelling 
public  ;  and  rather  than  forbid,  the  law's  administrators  will  encourage 

1  This  case  is  abridged.  —  Ed. 


KATES  V.   ATLANTA  BAGGAGE  AND  CAB  CO.         177 

such  a  facility.  It  is  not  the  right  of  the  plaintiff  in  error,  by  injunc- 
tion or  otherwise,  to  take  away  or  disturb  any  reasonable  means  tend- 
ing to  promote  the  convenience  and  comfort  of  the  public.  Tiie  merit 
of  his  complaint,  if  any  exists,  must  be  found  in  the  fact  of  the  refusal 
of  the  defendants  to  grant  to  him  the  opportunities  so  to  serve  the  pub- 
lic and  thereby  better  his  business.  Whether  the  refusal  so  to  do  is 
proper  or  unlawful  does  not  depend  upon  the  favor  or  inclination  of 
the  railroad  company,  but  upon  the  plaintiff's  right.  If  it  should 
depend  upon  favor,  then  the  plaintiff  in  error  has  no  cause  of  com- 
plaint, because  favor  is  essentiall}'  free  and  voluntary,  and  may  not  be 
demanded  ;  and  it  is  in  this  view  that  we  come  to  measure  by  the  legal 
standard  what  are  the  rights  of  the  petitioner  under  the  allegations  he 
makes,  as  against  the  rights  of  the  defendants  to  control  property  to 
which  they  have  title  and  consequently  the  right  of  use,  and  the  plain- 
tiff in  error,  to  succeed,  must  establish  the  proposition  that  the  de- 
fendants as  common  carriers  are  in  law  bound  to  afford  to  him  the 
same  conveniences  and  facilities  for  carrying  on  his  business  which 
they  afford  to  others  engaged  in  the  same  calling. 

It  is  claimed  that  the  grant  of  the  enumerated  privileges  to  the  cab 
company,  and  tlie  refusal  of  them  to  petitioner,  is  the  exercise  of  an 
undue  preference  on  the  part  of  the  carrier  against  the  business  of 
petitioner,  and  that  such  grant  and  refusal  establishes  a  monopoly 
which  is  forbidden  by  law.  In  entering  into  the  consideration  of  these 
important  questions,  we  find  that  the  field  of  inquiry  has  been  fre- 
quently traversed,  with  the  result  of  adjudicated  cases  not  entirely  in 
harmou}'.  In  some  of  these,  the  decisions  are  based  on  the  common 
law ;  in  very  many  more,  on  the  terms  of  various  statutes ;  and  it  may 
be  well  to  inquire  whether  our  own  organic  or  statute  law  deals  par- 
ticularly with  such  questions.  It  is  undeniably  true  that  the  whole 
spirit  of  our  constitution  and  laws  is  directed  against  au}^  restriction 
of  competition.  Constitution  of  Ga.,  art.  4,  section  2,  par.  4.  Sec- 
tion 2,214  of  the  Civil  Code  declares  against  discrimination  in  rates  of 
freight  and  in  the  furnishing  of  facilities  for  interchange  of  freights, 
&c.,  as  do  also  sections  2,188,  2,307,  2,268,  and  2,274  of  the  Civil 
Code,  in  a  greater  or  less  degree.  While  it  is  perhaps  true  that  there 
are  no  express  rules  of  any  of  our  statutes  which  enact  penalties  for 
unjust  discrimination  exercised  by  carriers  to  the  detriment  of  the  busi- 
ness of  another,  yet  tiie  scope  and  intent  of  the  provisions  to  which 
we  have  referred  are  broad  enough  to  afford  a  remedy.  But  in  the  ab- 
sence of  any  statutory  declaration,  we  are  remitted  to  the  principles  of 
the  common  law  to  determine  whether  the  refusal  to  grant  the  plain- 
tiff in  error  the  exercise  of  the  facilities  afforded  to  another  in  the 
same  business  is  an  unjust  discrimination,  or  an  unequal  and  illegal 
preference.  The  defendant  railroad  companies  are  common  carriers 
and  are  under  obligation  to  serve  the  public  equally  and  justlj'.  Hav- 
ing accepted  their  riglit  of  existence  from  the  public,  thej'  owe  a  duty 
to  the  public,  and  their  conduct  must  be  equal  and  just  to  all.     The 

12 


178        KATES  V.   ATLANTA  BAGGAGE  AND  CAB  CO. 

very  definition  of  a  coramon  carrier  excludes  the  right  to  grant  mo- 
nopolies or  to  give  special  or  unequal  preferences.  It  implies  indiffer- 
ence as  to  whom  he  ma\-  serve  and  an  equal  readiness  to  serve  all  who 
may  apply  in  the  order  of  their  application.  57  Me.  188.  From  these 
characteristics,  which  ap[)ly  to  all  common  carriers,  it  is  a  sound  legal 
principle  that  a  railwa}'  companj'  as  a  common  carrier  cannot  grant  to 
any  person  or  persons,  or  to  an}'  part  of  the  public,  rights  or  privileges 
which  it  refuses  to  others,  but  must  treat  all  alike.  Receiving  and  dis- 
charging baggage  is  one  of  the  duties  of  a  public  passenger-carrier, 
and  the  obligations  before  enumerated  appl}'  in  full  force  in  the  re- 
ceipt and  discharge  of  baggage  at  the  union  passenger-station  in  the 
city  of  Atlanta;  and  if  it  should  be  found  to  be  true  that  the  defend- 
ant railroad  companies,  either  in  the  receipt  or  deliver}'  of  baggage  by 
their  baggage- master  or  other  agents,  discriminated  against  any  pas- 
senger or  the  agent  of  an}'  passenger  in  the  time  or  manner  in  which 
baggage  was  received  or  discharged  either  through  a  system  of  claim- 
checks  or  otherwise,  such  discrimination  would  be  a  palpable  violation 
of  their  public  duties,  for  which  the  law  affords  ample  remedy  by 
injunction  and  full  redress  in  the  nature  of  damages.  So  of  injury  to 
or  undue  interference  with  the  baggage  presented.  Neither  should 
discourteous  language  or  personal  ill-treatment  by  the  agents  of  the 
carrier  in  the  performance  of  his  business  be  tolerated.  As  these 
charges  were  denied,  and  the  judgment  sought  to  be  reversed  necessa- 
rily included  a  finding  against  their  truth,  notiiing  more  than  a  recog- 
nition of  the  principle  need  now  be  adverted  to ;  but,  inseparably 
connected  with  the  transaction  of  its  public  business,  a  common  car- 
rier is  invested  with  the  ownership  of  property,  for  the  safe  and  effi- 
cient exercise  of  the  franchises  which  the  public  has  for  its  own  benefit 
given  to  it.  Railroad  companies  have  rights  of  way,  stations,  depots, 
cars,  engines,  &c.,  as  their  equipment  to  serve  the  public.  In  the  use 
of  such  property  as  public  carriers,  no  one  of  the  public  ought  to  be 
favored  more  than  another,  nor  is  it  lawful  to  impose  any  restriction, 
or  make  any  discrimination  in  such  use,  against  any  one,  which  does 
not  apply  to  all;  but  this  rule  of  impartiality  applies  to  railroad  com- 
panies in  their  public  capacity,  and  it  by  no  means  follows  that  such 
reasonable  rules  and  regulations  which  a  carrier  may  make  for  the  pro- 
tection of  its  property,  for  the  safety  and  convenience  of  its  pas- 
sengers or  freights,  are  subject  to  the  same  unqualified  condition. 

This  court  in  the  case  of  Fluker  v.  Georgia  R.  R.  Co.,  81  Ga.  461, 
recognized  the  distinction  which  exists  between  the  duty  which  a  rail- 
road company  owes  to  the  public  and  the  private  right  to  regulate  and 
control  its  property.  In  that  case  the  railroad  company  had  leased  to 
one  individual  the  right  of  serving  lunches  to  passengers  on  its  trains 
at  a  given  place.  Another  claimed  the  right  to  exercise  the  same  priv- 
ilege, which  the  company  denied,  and  the  claimant  was  expelled  as 
an  intruder.  As  in  our  opinion  this  case  goes  very  far  in  determin- 
ing the  legal  questions  now  presented,  we  freely  refer  to  the  opinion  ren- 
dered by  Chief  Justice  Bleckley  as  sound  in  principle,  and  authority 


PEOPLE   EX    EEL.    V.    HUDSON    RIVER   TELEPHONE   CO.  179 

binding  upon  us.  Through  him  the  court  sa3-s  :  "  It  is  contended  that 
the  company  has  no  such  exclusive  dominion  over  the  tracks  and  spaces 
embraced  in  its  right  of  way  as  to  entitle  it  to  exclude  therefrom  any 
person  entering  thereon  in  an  orderly  manner  and  upon  lawful  business  ; 
afid  especially  that  it  cannot  discriminate  against  one  person  and  in 
favor  of  another.  We  have  discovered  no  authorit}-  for  this  position, 
eitlier  in  its  more  limited  or  more  extended  form.  On  the  contrary,  it 
would  seem  that  the  very  nature  of  property  involves  a  right  to  exclusive 
dominion  over  it  in  tlie  owner.  We  cannot  believe  that  there  is  a  sort 
of  right  of  common  lodged  iu  the  public  at  large  to  enter  upon  lands 
on  which  railroads  are  located,  and  over  which  they  have  secured  the 
right  of  wa}'.  Such  lands  the  railroad  companies  may  inclose  b}' 
fences  if  the}'  choose  to  do  so,  and  exclude  any  and  all  persons  whom- 
soever. Their  dominion  over  the  same  is  no  less  complete  or  exclu- 
sive than  that  which  ever}'  owner  has  over  his  propert}'.  If  they  do 
not  choose  to  erect  fences  and  make  enclosures,  they  ma}',  by  mere 
orders,  keep  off  intruders,  and  they  may  treat  as  intruders  all  who 
come  to  transact  their  own  business  with  passengers  or  with  persons 
other  than  the  companies  themselves.  .  .  .  The  business  of  selling 
lunches  to  passengers,  or  of  soliciting  from  them  orders  for  the  same, 
is  not  one  which  every  citizen  has  the  right  to  engage  in  upon  the 
tracks  and  premises  of  a  ^p.ilway  company,  and  consequently  those* 
who  do  engage  in  it  and  carry  it  on  must  depend  upon  the  company 
for  the  privilege."  Citing  G7  N.  Y.  301  ;  31  Ark.  50  ;  2  Gray,  577  ; 
88  Penn.  St.  424;  128  Mass.  5  ;  29  Ohio  St.  364.  This  is  the  exposi- 
tion of  the  law  in  force  in  this  State,  from  which,  as  we  believe,  there 
has  been  no  departure.  If  the  principles  declared  are  applicable  to 
t!ie  facts  of  the  present  record,  it  would  seem  that  the  contention  of 
tlie  plaintiff  that  he  should  bo  allowed,  as  a  matter  of  right,  access 
to  the  depot-grounds  and  trains  of  the  defendant  railroad  companies  to 
ply  his  business,  must  fail.  The  case  clearly  rules  the  principle  that  a 
railroad  company  has  the  right  to  exclude  from  its  premises  persons 
going  thereon  for  the  purpose  of  transacting  private  business;  and  a 
second  proposition  is  equally  as  clearly  stated  to  be,  that  the  privilege 
of  doing  so  may  be  granted  to  one  and  refused  to  another  without 
violating  any  principle  of  law  which  governs  the  conduct  of  carriers 
and  regulates  their  duty  to  the  public. 


PEOPLE  EX   REL.  POSTAL  TELEGRAPH   CO.    v.   HUDSON 
RIVER   TELEPHONE   CO. 

Supreme  Court,  New  York,  1887. 

[19  Abb.  N.  C.  466.1] 

Parker,  J.     The  relator  is  engaged  in  the  transmission  of  messages 
by  telegraph ;  the  defendant,  in  the  transmission  of  human  speech  by 
1  Opiuion  only  is  printed.  —  Ed. 


ISO  PEOPLE    EX    REL.    V.   HUDSON    RIVER   TELEPHONE    CO. 

means  of  the  telephone.  In  addition,  both  relator  and  defendant  carry 
on  a  general  messenger  business  in  the  city  of  Alban}',  and  each  are 
duly  organized  under  and  b}'  virtue  of  statutes  of  this  State. 

By  the  moving  papers  it  appears  that  the  relator  demanded  of  the 
defendant  that  one  of  its  telephones  be  placed  in  the  office  of  The 
Postal  Telegraph  Cable  Compan}',  and  at  the  same  time  offered  to  pay 
an}-  sum  required  for  the  privilege  of  having  and  using  such  telephone, 
and  further  promised  to  "  comply  with  all  the  rules  and  regulations, 
regulating  and  controlling  all  persons,  corporations,  and  companies 
having  or  using  said  telephone,"  and  that  the  defendant  refused,  and 
still  refuses,  to  compl}-  with  such  demand. 

Thereupon  the  relator  moved  the  court  for  a  peremptory  7nandamus 
directing  the  defendant,  on  payment  to  it,  b}-  relator,  of  its  usual 
charges  and  compliance  with  its  proper  regulations,  to  place  one  of  its 
telephones  in  relator's  office. 

The  owner  of  a  patent  has  the  rigiit  to  determine  whether  or  not  any 
use  shall  be  made  of  his  invention,  and,  if  any,  what  such  use  shall  be. 
When  however  he  determines  upon  its  use,  his  legal  dut}'  to  the  i)ublic 
requires  that  all  persons  shall,  in  respect  to  it,  be  treated  alike,  without 
injurious  discrimination  as  to  rates  or  conditions.  A  common  carrier 
is  bound  to  carry  all  articles  within  the  line  of  its  business,  for  all  per- 
sons upon  the  terms  usually'  imposed.  Bank  v.  Adams  Express  Co., 
1  Flippin  (S.  C.)  242.  "When  a  railroad  company'  establishes  com- 
mutation rates  for  a  given  localit}',  it  has  no  right  to  refuse  to  sell  a 
commutation  ticket  to  a  particular  individual  of  such  locality.  Atwater 
V.  Delaware,  Lackawanna  R.  R.,  4  East.  Rep.  186.  A  gas  company 
must  furnish  gas  at  the  same  rates  to  all  consumers  who  apply  and  are 
ready  and  willing  to  pay  therefor.  Shepard  v.  Milwaukee,  6  Wis.  539  ; 
People  ex  rel.  Kennedy  v.  Manhattan  Gas  Co.,  45  Barb.  136.  And 
a  telephone  company  is  not  permitted  to  withhold  facilities  for  the 
transaction  of  business  from  one  class  of  citizens  which  it  accords 
to  others.  State  ex  rel.  American  U.  T.  Co.  v.  Bell  T.  Co.,  11  Cent. 
L.  J.  359. 

The  authorities  cited  establish  the  principle  that  a  public  servant,  as 
the  defendant  is,  cannot  so  use  the  invention  protected  by  the  govern- 
ment, as  to  withhold  from  one  citizen  the  advantages  which  it  accords 
to  another ;  and  it  follows  that  the  relator  in  this  case  on  compliance 
with  the  usual  terms,  and  reasonable  regulations  of  the  defendant,  is 
entitled  to  have  tnamiamus  issue  directing  the  placing  of  one  of  its 
telephones  in  relator's  office. 

The  defendant's  papers  contain  a  copy  of  the  agreement  which  it  re- 
quires its  subscribers  to  sign  before  giving  to  them  a  telephone  for  use, 
such  agreement  containing  the  rules  and  regulations  which  the  defend- 
ant has  determined  must  form  a  condition  precedent  to  the  placing  or 
using  of  one  of  its  telephones. 

Upon  the  argument,  relator's  counsel  contended  that  a  portion 
thereof  was  unreasonable,  and  that  to  comply  therewith  would  sub- 


PEOPLE    EX    REL.    V.    HUDSON   PJVER   TELEPHONE    CO.  181 

stantiall}-  deprive  his  client  from  receiving  any  benefit  to  its  business 
by  the  use  of  the  telephone. 

The  clauses  in  the  agreement  to  which  objection  was  made  were  : 
First.  "■  They  are  not  to  be  used  for  .  .  .  any  part  of  the  work  of  col- 
lecting, transmitting,  or  delivering  any  message  in  respect  of  which 
any  toll  has  been  or  is  to  be  paid  to  any  party  other  than  the  Exchange. 
Second.     Nor  for  calling  messengers  except  from  the  Central  Office." 

As  to  the  first :  Both  parties  are  engaged  in  the  attempt  to  extend 
their  business  to  the  utmost  possible  limit.  They  are  alike  interested 
in  securing  as  many  customers  as  possible  for  their  respective  lines, 
and  to  a  considerable  extent  the}'  are  competitors  in  the  same  territory 
for  the  business  of  transmitting  messages. 

Now,  while  the  rule  is  well  settled  that  a  common  carrier  must  serve 
the  public  impartially,  still  it  must  be  borne  in  mind  that  its  duty  is  to 
the  public,  and  not  to  other  and  competing  common  carriers.  One 
common  carrier  cannot  demand,  as  a  right,  that  it  be  permitted  to  use 
a  rival  common  carrier's  property  for  the  benefit  of  its  own  business. 
Express  Cases,  117  U.  S.  1  ;  Jencks  v.  Coleman,  2  Sumner,  221  ; 
Barry  v.  O.  B.  H.  Steamboat  Co.,  67  N.  Y.  301. 

The  relator  in  this  case,  however,  contends  that  the  statute,  under 
which  the  defendant  was  incorporated,  makes  it  the  duty  of  the  de- 
fendant to  permit  such  use  of  its  telephone  as  the  relator's  business 
requires. 

The  statute,  among  other  things,  provides  that  "it  shall  be  the 
duty  of  the  owner  or  the  association  owning  an}-  telegraph  line  doing- 
business  within  this  State,  to  receive  despatches  from  and  for  other 
telegraph  lines  and  associations,  and  from  and  for  any  individual,  and 
on  payment  of  their  usual  charges  for  individuals,  for  transmitting 
despatches,  as  established  bv  the  rules  and  regulations  of  such  tele- 
graph line,  to  transmit  the  same  with  impartialit}'  and  good  faith." 

It  is  clear  that  the  provision  quoted  makes  it  the  duty  of  the  defend- 
ant to  transmit  over  its  wires,  any  and  all  messages  which  the  relator 
may  desire  to  have  transmitted,  on  payment  of  their  usual  charges  to 
individuals.  It  seems  equally  clear  that  it  was  not  intended  to  and 
does  not,  authorize  the  relator  to  transmit  its  own  messages  over 
defendant's  wires,  on  payment  of  the  merel}'  nominal  sum  required  of 
its  ordinar}'  subscribers. 

Such  a  rule  would  result  unjustly  to  the  defendant,  as  it  would  enable 
the  relator  to  enter  into  competition  with  defendant  in  the  transmission 
of  messages  over  its  own  wires.  With  equal  propriety  it  could  demand 
that  it  be  connected  with  the  wires  of  the  Western  Union  Telegraph 
Company,  on  payment  of  a  proper  charge,  and  that  then  it  be  per- 
mitted to  use  in  its  own  way,  and  at  its  own  convenience,  the  wires 
and  property  of  its  competitor  for  its  business. 

Such  a  construction  as  tlie  relator  contends  for  is  not  in  accordance 
with  either  the  letter  or  spirit  of  the  statute.  What  the  statute  com- 
mands of  corporations  doing  business  in  this  State  is,  that  the}'  shall 


1S2  PEOPLE    EX   EEL.    V.    PTUDSON    IIIVEE    TELEPHONE    CO. 

send  an}'  message  presented  b}'  anotlier  telegrapli  compan}-,  for  that 
purpose,  on  pa^'ment  of  the  proper  and  usual  charges.  Should  defend- 
ant refuse  at  an}'  time  to  send  a  message  presented  b}'  the  relator  for 
that  purpose,  the  law  affords  an  adequate  remedy  for  the  violation  of 
the  statute.  No  claim  is  made  that  the  defendant  has  ever  refused  to 
send  messages  for  the  relator,  and  the  only  question  in  respect  to  the 
transmission  of  messages  in  controversy  here  is,  Can  the  relator 
demand  the  right  to  transmit  them  according  to  its  own  pleasure? 
Neither  the  rules  established  by  the  courts,  nor  the  statute  referred  to 
justify  such  a  holding,  and  in  that  respect,  therefore,  the  rules  and  reg- 
ulations of  the  defendant  seem  to  be  reasonable  and  proper. 

The  objection  that  so  much  of  defendant's  regulations  as  prevents 
the  use  of  the  telephone  by  a  subscriber  for  the  purpose  of  calling 
messengers  except  from  the  Central  office,  is  unreasonable,  seems  to 
me  to  be  well  taken.  The  defendant  urges  that  the  messenger  business 
as  conducted  by  it  is  profital)le,  and  for  that  reason  it  is  desirable  that 
it  should  be  retained  as  free  from  competition  as  possible  ;  and  in  aid 
of  its  position  invokes  the  rule  as  established  by  the  courts,  that  it 
owes  no  such  duty  to  its  rival  as  the  permission  to  use  its  property  for 
the  purpose  of  a  competing  business,  would  constitute.  The  rule  can- 
not be  questioned,  but  the  application  is  faulty.  The  messenger  busi- 
ness, although  carried  on  b}'  the  same  company  and  at  the  same  offices, 
is  nevertheless  a  distinct  and  separate  business,  and  in  nowise  essen- 
tial to  the  conduct  of  the  defendant's  svstem  of  transmitting  messages 
bv  telephone,  for  which  purpose  it  was  incorporated.  To  extend  the 
rule  protecting  its  business  from  rivals,  so  as  to  include  any  otiier 
business  in  which  it  might  see  fit  to  engage,  could  result  in  great  in- 
justice to  the  public.  A  liver}'  stable,  provision  stoi'c,  meat  market, 
and  other  classes  of  business  could  be  added  in  the  course  of  time,  and 
by  amending  their  rules  so  as  to  include  each  new  business  in  the  same 
manner  as  the  messenger  service  is  now  attempted  to  be  protected,  a 
monopoly  could  be  created  at  the  expense  of  tradesmen  and  merchants, 
and  to  the  detriment  of  the  public  generally. 

In  Louisville  Transfer  Co.  v.  Am.  Dist.  Tel.  Co.,  24  Alb.  L.  J.  283- 
284,  both  parties  were  engaged  in  the  carriage  and  coupe  service,  and 
the  defendant  insisted  upon  the  right  to  a  monoi^oly  in  the  use  of  its 
own  telephone  methods  of  communicating  and  receiving  orders  for 
coupes.  The  court  held  otherwise,  and  granted  an  injunction  restrain- 
ing defendant  from  removing  the  telephone,  and  from  refusing  to 
transact  plaintiff's  business.  The  decision  of  tlie  court  in  that  case  is 
applicable  to  the  question  here  involved,  and  its  reasoning  is  approved. 

It  follows  :  First.  Tliat  the  relator  is  entitled  to  a  inandamus  direct- 
ing and  commanding  the  defendant  to  place  a  telephone  in  its  office  on 
compliance  with  defendant's  rules  and  regulations,  and  payment  by  it 
of  deft'ndant's  proper  charges. 

Second.  That  so  much  of  defendant's  regulations  as  provide  that 
the  telephone  shall  not  be  used  "for  calling  messengers  except  from 


CIIESAFE^VKE    AND    POT.    TEL.   CO.    V.    BAL.    AND    OHIO    TEL.   CO.      183 

the  Central  Office,"  are  unreasonable,  and  need  not  be  acceded  to  by 
the  relator. 

Third.  As  it  was  stated  upon  the  argument  that  a  review  of  the 
decision  was  intended,  an  application  for  a  stay  under  section  2,089, 
Code  Civ.  Pro.,  will  be  entertained. 


CHESAPEAKE    AND    POTOMAC   TELEPHONE   CO.   v.   BAL- 
TIMORE  AND   OHIO   TELEGRAPH   CO. 

Court  of  Appeals,  Maryland,  1887. 

[66  Maryland,  399.1] 

Alvey,  C.  J.  This  was  an  application  by  the  appellee,  a  telegraph 
company,  to  the  court  below  for  a  ma?idav2us,  which  was  accordingly 
ordered,  against  the  appellant,  another  telegraph  company,  but  doing 
a  general  telephone  business. 

The  appellant  appears  to  be  an  auxiliary  compan}',  operating  the 
Telephone  Exchange  under  the  patents  known  as  the  Bell  patents. 
Those  patents,  formerly  held  by  the  National  Bell  Telephone  Com- 
pany, are  now  held  by  the  American  Bell  Telephone  Company,  a  cor- 
poration created  under  the  law  of  the  State  of  Massachusetts.  The 
patents,  with  the  contracts  relating  thereto,  were  assigned  b}'  the 
former  to  the  latter  company,  prior  to  the  23d  of  May,  1882,  and  it 
is  under  a  contract,  of  the  date  just  mentioned,  that  the  appellant 
acquired  a  right  to  use  the  patented  devices  in  the  operation  of  its 
system  of  telephonic  exchanges. 

In  the  agreed  statement  of  facts,  it  is  admitted  that  all  the  tele- 
phones used  by  the  Chesapeake  and  Potomac  Telephone  Company  (a 
company  to  which  the  appellant  is  an  auxiliary  organization),  and  also 
all  the  telephones  used  by  the  appellant  in  its  Exchange  in  the  Cit}'  of 
Baltimore,  and  elsewhere  in  the  State,  are  the  propert}'  of  the  Ameri- 
can Bell  Telephone  Compau}'.  It  is  alleged  b}-  the  appellee  and 
admitted  by  the  appellant,  that  the  offices  of  the  Western  Union  Tele- 
graph Compan}'  of  Baltimore  City  are  connected  with  the  Telephone 
Exchange  of  the  appellant,  and  that  when  a  subscriber  to  the  Tele- 
phone Exchange  wishes  to  send  a  message  by  way  of  the  lines  of  the 
Western  Union  Telegraph  Company,  the  subscriber  calls  up  the  Tele- 
phone Exchange,  and  the  agent  there  connects  him  with  the  office  of 
the  Western  Union  Telegraph  Companj-,  and  the  subscriber  thereupon 
telephones  his  message  over  the  lines  of  the  appellant,  to  the  Western 
Union  Telegraph  office  ;  and  a  like  process  is  repeated  when  a  message 
is  received  by  the  Western  Union  Telegraph  Company  for  a  subscriber 
to  the  Telephone  Exchange  of  the  appellant.     The  appellee  is  a  com- 

^  Part  of  the  opinion  only  is  given.  —  Ed. 


184      CHESAPEAKE   AND   POT.    TEL.   CO.   V.   BAL.   AND   OHIO   TEL.   CO. 

peting  company,  in  the  general  telegraph  business,  with  the  Western 
Union  Telegraph  Company.  And  being  such,  it  made  application  to 
the  appellant  to  have  a  telephone  instrument  placed  in  its  receiving 
room  in  Baltimore,  and  that  the  same  might  be  connected  with  ihe 
Central  Exchange  of  the  appellant  in  that  city  ;  so  tiiat  the  appellee 
might  be  placed  upon  the  same  and  equal  footing  with  the  Western 
Union  Telegraph  Corapah}',  in  conducting  its  business.  This  request 
was  refused,  unless  the  connection  be  accepted  under  certain  condi- 
tions and  restrictions,  to  be  specially  embodied  in  a  contract  between 
the  two  companies,  and  which  conditions  and  restrictions  do  not  apply 
in  the  case  of  the  Western  Union  Telegraph  Company. 

It  appears  that  there  were  conflicting  claims  existing  as  to  priority 
of  invention,  and  alleged  infringement  of  patent  rights,  which  were 
involved  in  a  controvers}-  between  the  Western  Union  Telegraph  Coni- 
pan}'  and  others,  and  the  National  Bell  Telephone  Company,  to  whose 
rights  the  American  Bell  Telephone  Company  succeeded ;  and  in  order 
to  adjust  those  conflicting  pretensions,  the  contract  of  the  10th  of  Nov., 
1879,  was  entered  into  by  the  several  parties  concerned.  The  contract 
is  very  elaborate,  and  contains  a  great  variety  of  provisions.  By  this 
agreement,  with  certain  exceptions,  the  National  Bell  Telephone  Com- 
pany was  to  acquire  and  become  owner  of  all  the  patents  relating  to 
telephones,  or  patents  for  the  transmission  of  articulate  speech  by 
means  of  electricity.  But  while  it  was  expressly  stipulated  (Art.  13, 
cl.  1)  that  the  right  to  connect  district  or  exchange  systems,  and  the 
right  to  use  telephones  on  all  lines,  should  remain  exclusivel}'  with  the 
National  Bell  Telephone  Company  (subsequently-  the  American  Bell 
Telephone  Company),  and  those  licensed  by  it  for  the  purpose,  it  was 
in  terms  provided  that  "  such  connecting  and  other  lines  are  not  to 
be  used  for  the  transmission  of  general  business  messages,  market 
quotations,  or  news,  for  sale  or  publication,  in  competition' with  the 
busi?iess  of  the  Western  Union  Telegraph  Company,  or  with  that  of 
the  Gold  and  Stock  Telegraph  Compan}-.  And  the  party  of  the  sec- 
ond part  [National  Bell  Teleph.  Co.],  so  far  as  it  lav:fally  and  prop' 
erly  can  prevent  it,  will  not  permit  the  transmission  of  such  general 
business  messages,  market  quotations,  or  news,  for  sale  or  publication, 
over  lines  owned  by  it,  or  by  corporations  in  which  it  owns  a  controll- 
ing interest,  nor  license  the  use  of  its  telephones,  or  patents,  for  the 
transmission  of  such  general  business  messages,  market  quotations,  or 
news,  for  sale  or  publication,  in  competition  with  such  telegraph  busi- 
ness of  the  Western  Union  Telegraph  Company,  or  that  of  the  Gold 
and  Stock  Telegraph  Company."  The  contract  of  the  23rd  of  May, 
1882,  under  which  the  appellant  derives  its  right  to  the  use  of  the 
patented  instruments,  was  made  in  subordination  to  the  prior  contract 
of  the  10th  of  Nov..  1879,  and  contains  a  provision  to  conform  to  the 
restrictions  and  conditions  just  quoted.  In  that  sul)ordinate  contract 
it  is  provided  that  "  no  telegraph  company,  unless  specially  permitted 
by  tlie  licensor,  can  be  a  subscriber,  or  use  the  system  to  collect  and 
deliver  messages  from  and  to  its  customers,"  &c. 


CHESAPEAKE  AND    POT.    TEL.    CO.    V.   BAL.    AND    OHIO    TEL.    CO.      185 

These  contracts  are  pleaded  and  relied  on  by  the  appellant  as  afford- 
ing a  full  justification  for  exacting  from  the  appellee  a  condition  in  the 
contract  of  subscription  to  the  P^xchange,  that  the  latter  should  observe 
the  restrictions  in  favor  of  the  Western  Union  Telegraph  Company. 
The  appellant  contends  that  these  restrictive  conditions  in  the  con- 
tracts recited  are  binding  upon  it,  and  that  it  is  not  at  liberty  to  furnish 
to  the  appellant,  being  a  telegraph  company,  the  instruments  applied 
for  and  place  them  in  connection  with  the  Exchange,  unless  it  be  sub- 
ject to  the  restrictive  conditions  prescribed.  And  if  this  be  so,  the 
Court  below  was  in  error  in  ordering  the  mandamus  to  issue.  But  is 
the  contention  of  the  appellant  well  founded,  in  view  of  the  nature  of 
the  service  that  it  has  undertaken  to  perform  ? 

The  appellant  is  in  the  exercise  of  a  public  employment,  and  has 
assumed  the  duty  of  serving  the  public  while  in  that  employment.  In 
this  case,  the  appellant  is  an  incorporated  body,  but  it  makes  no  differ- 
ence whether  the  party  owning  and  operating  a  telegraph  hne  or  a  tele- 
phone exchange  be  a  corporation  or  an  individual,  the  duty  imposed, 
in  respect  to  the  public,  is  the  same.  It  is  the  nature  of  the  service 
undertaken  to  be  performed  that  creates  the  duty  to  the  public,  and  in 
which  the  public  have  an  interest,  and  not  simply  the  body  that  may 
be  invested  with  power.  The  telegraph  and  telephone  are  important 
instruments  of  commerce,  and  their  service  as  such  has  become  indis- 
pensable to  the  commercial  and  business  public.  The}'  are  public 
vehicles  of  intelligence,,  and  they  who  own  or  control  them  can  no  more 
refuse  to  perform  impartially  the  functions  that  they  have  assumed  to 
discharge,  than  a  railway  company,  as  a  common  carrier,  can  rightfully' 
refuse  to  perform  its  duty  to  the  public.  Thej'  may  make  and  estab- 
lish all  reasonable  and  proper  rules  and  regulations  for  the  government 
of  their  offices  and  those  who  deal  with  them,  but  they  have  no  power 
to  discriminate,  and  while  offering  ready  to  serve  some,  refuse  to  serve 
others.  The  law  requires  them  to  be  impartial,  and  to  serve  all  alike, 
upon  compliance  with  their  reasonable  rules  and  regulations.  This  the 
statute  expressly  requires  in  respect  to  telegraph  lines,  and,  as  we  have 
seen,  the  same  provision  is  made  applicable  to  telephone  lines  and 
exchanges.  The  law  declares  that  it  shall  be  the  duty  of  any  person 
or  corporation  owning  and  operating  any  telegraph  line  within  this 
State  (which,  as  we  have  seen,  includes  a  telephone  exchange)  "  to 
receive  dispatches  from  and  for  any  telegraph  lines,  associations,  or 
companies,  and  from  and  for  any  individual,"  and  to  transmit  the 
same  in  the  manner  established  by  the  rules  and  regulations  of  the 
office,  "  and  in  the  order  in  which  they  are  received,  with  impartiality 
and  good  faith."  And  such  being  the  plain  duty  of  those  owning  or 
operating  telegraph  lines,  or  telephone  lines  and  exchanges,  within  this 
State,  they  cannot  be  exonerated  from  the  performance  of  that  dut}', 
by  any  conditions  or  restrictions  imposed  by  contract  with  the  owner 
of  the  invention  applied  in  the  exercise  of  the  employment.  The  duty 
prescribed  by  law  is  paramount  to  that  prescribed  by  contract. 

Nor  can  it  be  any  longer  controverted  that  the  Legislature  of  the 


186       STATE    EX    EEL.    V.   PORTLAND    NATURAL    GAS    AND    OIL    CO. 

State  has  full  power  to  regulate  and  control,  within  reasonable  limits 
at  least,  public  emplo3-ments  and  property  used  in  connection  there- 
with. As  we  have  said,  tlie  telegraph  and  telephone  both  being  instru- 
ments in  constant  use  in  conducting  the  commerce,  and  the  affairs, 
both  public  and  private,  of  the  country,  their  operation,  therefore,  in 
doing  a  general  business,  is  a  public  employment,  and  the  instruments 
and  appliances  used  are  property'  devoted  to  public  use,  and  in  which 
the  public  have  an  interest.  And  such  being  the  case,  the  owner  of  the 
property  tinis  devoted  to  public  use,  must  submit  to  have  that  use  and 
employment  regulated  b}'  public  authority'  for  the  common  good.  Tliis 
is  the  principle  settled  by  the  case  of  Munn  v.  Illinois,  94  U.  S.  113, 
and  which  has  been  followed  hy  subsequent  cases.  In  the  recent  case 
of  Hockett  V.  State,  105  Ind.  2.50,  where  the  cases  upon  this  subject 
are  largely-  collected,  it  was  held,  applying  the  principle  of  Munn  v. 
Illinois,  that  it  was  competent  to  the  State  to  limit  the  price  which  tele- 
phone companies  might  charge  for  their  patented  facilities  afforded  to 
their  customers.  And  if  the  price  of  the  service  can  be  lawfully  regu- 
lated by  State  authorit}',  there  is  no  perceptible  reason  for  denying 
such  authority  for  the  regulation  of  the  service  as  to  the  parties  to 
whom  facilities  should  be  furnished.^ 


STATE   EX   REL.   SNYDER   v.   PORTLAND   NATURAL 
GAS   AND   OIL   CO. 

Supreme  Court  op  Indiana,  1899. 

[153  Ind.  483.2] 

Jordan,  C.  J.  This  is  a  proceeding  in  quo  toarranto  b}-  the  State 
of  Indiana  on  the  elation  of  the  prosecuting  attorne}'  of  the  twenty- 
sixtli  Judicial  Circuit  to  dissolve  and  seize  the  corporate  franchises  of 
appellee.  The  venue  of  the  cause  was  changed  from  the  Jay  Circuit 
Court  to  the  Randolph  Circuit  Court,  in  which  court  a  demurrer  was 
sustained  to  the  information  for  insufficiency  of  facts,  and  judgment 
was  rendered  in  favor  of  appellee  thereon.  The  State  appeals  and 
assigns  error  on  the  ruling  of  the  court  in  sustaining  the  demurrer 
to  the  information. 

The  information  alleges  that  the  defendant  is  a  corporation  duly 
organized  in  Deceml)er,  1886,  under  the  laws  of  the  State  of  Indiana 
relating  to  the  incorporation  of  manufacturing  and  mining  companies. 
The  object  of  its  organization  is  to  conduct  the  business  of  mining  oil 
and  gas,  and  to  furnish  the  same  for  fuel  and  illuminating  purposes  and 

1  Compare :  Western  Union  v.  Chicago  R.  R.,  86  111.  246  ;  Western  Union  v.  Atlan- 
ta, &c.  R.  R.,  5  Oh.  St.  407 ;  Union  Trust  v.  Atcheson,  &c.  Co.,  8  N.  M  327.  — Ed. 

2  This  case  is  abridged.  —  Ed. 


STATE    EX   KEL.    V.    PORTLAND   NATURAL   GAS   AND    OIL   CO.        187 

for  propelling  machiner}-,  &c.  Its  place  of  business  or  operation  is 
stated  to  be  at  the  city  of  Portland,  in  the  State  of  Indiana.  After 
its  incorporation  it  obtained  from  said  cit}-  permission  to  lay  gas  pipes 
along  and  under  the  public  streets  of  that  city  for  the  purpose  of  sup- 
plying its  inhabitants  with  gas  for  light  and  fuel,  and  it  engaged  in 
furnishing  gas  to  them  for  such  purposes.  That  the  Citizens  Natural 
Gas  and  Oil  Company  was  also  duly  incorporated  in  February,  1889, 
under  the  same  laws  and  for  the  same  purposes  as  was  defendant,  and 
it  also  was  granted  the  privilege  by  the  city  of  Portland  to  lay  its  pipes 
in  and  along  the  streets  of  the  city  for  the  same  purposes  as  was  de- 
fendant, and  it  engaged  in  supplying  gas  to  the  inhabitants  of  said  city 
for  fuel  and  light. 

After  alleging  these  facts,  the  information  charges  that  the  defendant, 
on  the  1st  day  of  September,  1891,  "  in  violation  of  law  and  in  the 
abuse  of  its  corporate  powers  and  in  the  exercise  of  privileges  not  con- 
ferred upon  it  by  law  "  entered  into  a  certain  agreement  or  combination 
with  said  Citizens  Gas  and  Oil  Mining  Company  '-'to  fix  the  rate  of 
gas  to  be  charged  by  them  and  each  of  them  to  the  consumers  in  said 
city  of  Portland."  It  was  further  agreed  bv  and  between  the  defend- 
ant and  said  other  mentioned  company  that  "  neither  of  said  com- 
panies sliould  or  would  attach  the  service  pipes  of  any  gas  consumer  in 
said  city  to  its  pipe  lines  if,  at  the  time,  such  customer  or  consumer 
was  a  patron  of  the  other  company." 

It  is  further  averred  that  the  defendant  has  observed  and  complied 
with  said  agreement,  and  the  price  of  gas  has  been  fixed  thereby,  and 
it  has  at  all  times  refused  to  sell  or  furnish  gas  to  the  inhabitants  of 
said  city  at  an}-  other  price  than  the  one  fixed  by  said  agreement,  and, 
in  pursuance  of  said  agreement  and  in  order  to  prevent  competition,  it 
has  refused,  and  still  refuses,  to  supply  divers  inhabitants  of  the  said 
city  of  Portland  with  gas  who,  as  it  is  alleged,  were  consumers  of  gas 
from  the  pipe  line  of  the  said  Citizens  Gas  and  Oil  Mining  Company. 
It  is  further  alleged  that  there  is  no  other  corporation,  company,  or 
person  in  said  city  engaged  in  supplying  gas  for  light  and  fuel  to  its 
inhabitants. 

The  information  is  not  a  model  pleading,  and  may  perhaps  be  said  to 
be  open  to  the  objection  that  in  some  respects  it  is  uncertain,  and  in 
others  states  conclusions  instead  of  facts.  The  question,  however, 
presented  for  our  decision  is:  Are  the  facts,  as  therein  alleged,  suffi- 
cient to  entitle  the  State  to  demand  that  the  appellee's  corporate  fran- 
chises shall  be  declared  forfeited  ? 

Appellee  is  in  its  nature  a  public  corporation,  which  fact  has  been 
recognized  by  our  legislature  in  conferring  upon  companies  engaged  in 
a  business  of  like  character  the  right  of  eminent  domain.  Acts  1889, 
p.  22.  §  5103,  Burns,  1894.  Being  the  creature  of  the  law,  the  franchises 
granted  to  it  by  the  State,  in  theory  at  least,  were  granted  as  a  public 
benefit,  and  in  accepting  its  rights,  under  the  laws  of  the  State,  it  im- 
pliedly agreed  to  carry  out  the  purpose  or  object  of  its  creation,  and 


188       STATE   EX    REL.   V.   PORTLAND   NATURAL   GAS    AND   OIL   CO. 

assumed  obligations  to  the  public  ;  and  such  obligations  it  is  required 
to  discharge.  Beach  on  Monopolies  and  Industrial  Trusts,  §221; 
Thomas  v.  Railroad  Co.,   101  U.  S.  71. 

It  certainly  can  be  said,  and  the  proposition  is  sustained  b}'  ample 
authorit}',  that,  in  furtherance  of  the  purposes  for  which  it  was  created, 
it  owed  a  duty  to  the  public.  Its  duty  towards  the  citizens  of  the  city 
of  Portland  and  their  dut}'  towards  it  ma}'  be  said  to  be  somewhat  re- 
ciprocal, and  any  dealings,  rules,  or  regulations  between  it  and  them, 
which  do  not  secure  the  just  rights  of  both  parties,  cannot  receive  tlje 
approbation  of  a  court.  The  law,  among  other  things,  exacted  of  ap- 
pellee the  duty  to  offer  and  supply  gas  impartially  so  far  as  it  had  the 
ability  or  ca[)acit3'  to  do  so,  to  all  persons  desiring  its  use  within  the 
territory  to  which  its  business  was  confined,  provided  always  such  per- 
sons made  the  necessary  arrangements  to  receive  it  and  complied  with 
the  company's  reasonable  regulations  and  conditions.  Portland  Natural 
Gas,  &c.  Co.  V.  State,  135  Ind.  54,  and  authorities  there  cited  ;  People 
V.  Chicago  Gas  Trust  Co.,  130  111.  268 ;  Chicago,  &c.  Co.  v.  People's, 
&c.  Co.,  121  in.  530;  Westfield  Gas,  &c.  Co.  v.  Mendenhall,  142  Ind. 
538  ;  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1 ;  Central  Union 
Tel.  Co.  y.  Falley,  118  Ind.  194;  Central  Union  Tel.  Co.  v.  Swoveland, 
14  Ind.  App.  341  ;  8  Am.  and  Eng.  Ency.  of  Law,  614. 

It  is  an  old  and  familiar  maxim  that  '*  Competition  is  the  life  of 
trade,"  and  whatever  act  destroys  competition,  or  even  relaxes  it,  upon 
those  who  sustain  relations  to  the  public,  is  regarded  by  the  law  as  in- 
jurious to  public  interests  and  is  therefore  deemed  to  be  unlawful,  on 
the  grounds  of  public  policy.  Greenhood  on  Public  Policy,  pp.  654, 
655  ;  Chicago,  &c.  Co.  v.  People's,  &c.  Co.,  supra/  Gibbs  v.  Consoli- 
dated, &c.  Co.,  130  U.  S.  396  ;  Hooker  v.  Vandewater,  4  Denio,  349  ; 
Consumers  Oil  Co.  y.  Nunnemaker,  142  Ind.  560  ;  Beach  on  Pr.  Corp. 
§§  54,  55. 

The  authorities  affirm,  as  a  general  rule,  that,  if  the  act  complained 
of,  by  its  results,  will  restrict  or  stifle  competition,  the  law  will  regard 
such  act  as  incompatible  with  public  policy,  without  any  proof  of  evil 
intent  on  the  part  of  the  actor  or  actual  injur}'  to  the  public.  The  in- 
quiry is  not  as  to  the  degree  of  injury  inflicted  upon  the  public  ;  it  is 
sufficient  to  know  that  the  inevitable  tendencj'  of  the  act  is  injurious  to 
the  public.  Central  Ohio,  &c.  Co.  v.  Guthrie,  35  Ohio  St.  666  ;  Swan 
V.  Chorpcnning,  20  Cal.  182;  State  v.  Standard  Oil  Co.,  49  Ohio  St. 
137;  Gibbs  v.  Smith,  115  Mass.  592;  Richardson  d.  Buhl,  77  ]\[ich. 
632  ;  Pacific  Factor  Co.  v.  Adler,  90  Cal.  110  ;  Beach  on  Monopolies 
and  Industrial  Trusts,  §  82. 

Recognizing  and  adopting  the  principles  to  which  we  have  referred 
as  sound  law,  we  next  proceed  to  apply  them  as  a  test  to  the  facts  in- 
volved in  this  case.  It  will  not  be  unreasonable  to  presume  that  one  of 
the  objects  upon  tlie  part  of  the  cit}-  of  Portland  in  granting  permission 
to  the  Citizens  Gas  Company  to  lay  its  pipes  and  mains  along  and  under 
the  streets  of  that  city,  after  it  had  awarded  the  same  rights  to  appellee, 


CHICAGO,  M.  &  ST.  P.  R.  E.  V.  WABASH,  ST.  L.  &  P.  R.  R.  189 

was  that  there  might  be  a  reasonable  and  fair  competition  between 
these  two  companies.  B^-  the  agreement  in  question,  when  carried  into 
effect,  the  patrons  of  one  compan}-  were  excluded  from  being  supplied 
with  gas  from  the  other  compan}-.  Each  company'  was,  b^-  the  terms 
of  the  agreement,  bound  to  abide  by  and  maintain  the  prices  fixed,  and 
each  was  prohibited  from  furnishing  gas  to  the  customers  of  the  other. 

That  the  people  of  that  city  who  desired  to  become  consumers  of  gas 
were,  by  the  agreement  in  question,  deprived  of  the  benefits  tliat  might 
result  to  them  from  competition  between  the  two  companies  certainly 
cannot  be  successfully  denied.  The  exclusion  of  competition,  under 
the  agreement,  redounded  solely  to  the  benefit  of  appellee  and  the 
other  company,  and  the  enforcement  of  the  compact  between  them 
could  be  nothing  less  than  detrimental  to  the  public.  By  uniting  in  this 
agreement  appellee  disabled,  or  at  least  professed  to  have  disabled, 
itself  from  the  performance  of  its  implied  duties  to  furnish  gas  impar- 
tially to  all,  and  thereby  made  public  accommodations  subservient  to 
its  own  private  interests. 

From  what  we  have  said  it  follows  that  the  court  erred  in  sustaining 
appellee's  demurrer  to  the  information,  and  the  judgment  is  therefore 
reversed  and  the  cause  remanded  with  instructions  to  the  trial  court 
for  further  proceedings  consistent  with  this  opinion.^ 


CHICAGO,  M.  &  ST.  P.  R.  R.  v.  WABASH,  ST.  L.  &  P.  R.  R. 
Circuit  Court  of  United  States,  1894. 

[61  Fed.  993.2] 

Caldwell,  J.  The  design  of  the  contract  on  which  the  appellant 
rests  its  claim  is  not  left  to  presumption  or  conjecture.  Its  purpose  is 
apparent  on  the  face  of  the  instrument.  Its  object  was  not  to  avoid 
ruinous  competition  by  entering  into  an  agreement  to  carry  freight  at 
reasonable  rates,  but  its  evident  purpose  was  to  stifle  all  competition 
for  the  purpose  of  raising  rates.  By  the  means  of  the  contract,  all 
of  the  roads  are  to  be  operated,  as  to  through  traffic,  "■  as  they  should 
be  if  operated  by  one  corporation  which  owned  all  of  them."  These 
seven  corporations  were  made  one  company  so  far  as  concerned  their 
relations  with  each  other,  with  rival  carriers,  and  with  the  public.  Be- 
tween them  there  could  be  no  competition  or  freedom  of  action.  To 
the  extent  of  the  traffic  covered  b}'  this  contract,  —  and  it  covered  no 
inconsiderable  portion  of  the  traffic  of  the  continent,  —  each  company 
practically  abdicated  its  functions  as  a  common  carrier,  and  conferred 

1  Compare:  Gibbs  v.  Gas  Co.,  130  U.  S.  396;  Trust  Co.  v.  Columbus,  &c.  E.  R., 
95  Fed.  22 ;  Light  Co.  v.  Sims,  104  Cal.  331 ;  People  v.  Gas  Trust,  130  111.  293 ;  Light 
Co.  V.  Claffy,  151  N.  Y.  42.  — Ed. 

2  Only  opiuion  is  printed.  —  Ed. 


190  CHICAGO,  M.  &  ST.  P.  R.  R.  V.  WABASH,  ST.  L.  &  P.  R.  R. 

them  on  a  new  creation,  for  the  sole  purpose  of  suppressing  competi- 
tion. Before  tliey  entered  into  tliis  contract,  each  of  these  companies 
liad  tlie  power,  and  it  was  its  duty,  to  make  rates  for  itself,  and  to 
malvc  them  reasonable;  but,  by  the  terras  of  this  contract,  every  one 
of  the  companies  was  divested  of  all  its  powers  and  discretion  in  this 
respect.  The  contract  removed  every  incentive  to  tlie  companies  to 
afford  tlie  public  proper  facilities,  and  to  carry  at  reasonable  rates  ; 
for,  under  its  provisions,  a  company  is  entitled  to  its  full  percentage  of 
gross  earnings,  even  though  it  does  not  carr}'  a  pound  of  freight.  The 
necessary  and  inevitable  result  of  such  a  contract  is  to  foster  and  create 
poorer  service  and  higher  rates.  There  is  no  inducement  for  a  road 
to  furnish  good  service,  and  carr\'  at  reasonable  rates,  when  it  receives 
as  much  or  more  for  poor  service,  or  for  no  service,  as  it  would  re- 
ceive for  good  service  and  an  energetic  struggle  for  business. 

A  railroad  company  is  a  quasi  public  corporation,  and  owes  certain 
duties  to  the  public,  among  which  are  the  duties  to  afford  reasonable 
facilities  for  the  transportation  of  persons  and  property,  and  to  charge 
only  reasonable  rates  for  such  service.  Any  contract  by  which  it  dis- 
ables itself  from  performing  these  duties,  or  which  makes  it  to  its  inter- 
est not  to  perform  them,  or  removes  all  incentive  to  their  [)erforniance, 
is  contrary  to  public  policy  and  void ;  and,  the  obvious  purpose  of  this 
contract  being  to  suppress  or  limit  competition  between  the  contracting 
companies  in  respect  to  the  traffic  covered  by  the  contract,  and  to 
establish  rates  without  regard  to  the  question  of  their  reasonal)leness, 
it  is  contrary  to  public  policy,  and  void.  Railroad  Co.  v.  Closser,  126 
Ind.  348,  26  N.  E.  159  ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  State  (Tex.  Sup.), 
10  S.  W.  81;  State  v.  Standard  Oil  Co.  (Ohio  Sup.),  30  N.  E.  279; 
Texas  &  P.  Ry.  Co.  v.  Southern  Pac.  Ry.  Co.  (La.),  6  South.  888 ; 
Gibbs  V.  Gas  Co.,  130  U.  S.  396,  9  Sup.  Ct.  553  ;  Morris  Run  Coal  Co. 
V.  Barclay  Coal  Co.,  68  Pa.  St.  173  ;  Salt  Co.  v.  Guthrie,  35  Ohio  St. 
666  ;  Stanton  v.  Allen,  5  Denio,  434  ;  Hooker  v.  Vandewater,  4  Denio, 
349  ;  Chicago  Gaslight  &  Coke  Co.  v.  People's  Gaslight  &  Coke  Co., 
121  111.  530,  13  N.  E.  169;  West  Virginia  Transp.  Co.  v.  Ohio  River 
Pipe  Line  Co.,  22  W.  Va.  600  ;  W.  U.Tel.  Co.  v.  American  Union  Tel. 
Co.,  65  Ga.  160;  Sayre  v.  Association,  1  Duv.  143;  U.  S.  v.  Trans- 
Missouri  Freight  Ass'n,  7  C.  C.  A.  15,  58  Fed.  58. 

But,  conceding  that  the  contract  is  illegal  and  void,  the  appellant 
asserts  that  it  has  been  performed,  and  that  the  appellee  is  bound  to 
account  for  moneys  received  under  the  contract  according  to  its  terms. 
This  contention  rests  on  a  misconception  of  the  character  of  this  suit. 
The  appellant's  claim  is  grounded  on  the  illegal  and  void  contract,  and 
and  this  suit  is,  in  legal  effect,  nothing  more  than  a  bill  to  enforce  spe- 
cific performance  of  that  contract. 

The  contract  contemplated  two  modes  of  pooling,  —  one  b^-  an  actual 
division  of  the  traffic,  and  the  other  by  a  division  of  the  gross  earn- 
ings. The  traffic  not  having  been  divided,  this  is  a  suit  to  enforce  the 
second  method  of  the  pool,  —  a  division  of  the  gross  earnings  ;  or,  in 


CHICAGO,  M.  &  ST.  P.  R.  R.  V.  WABASH,  ST.  L.  &  P.  E.  R.  191 

other  words,  a  pooling  of  the  earnings.  The  illegal  and  void  contract 
has  not  been  executed,  and  the  appellant  invokes  the  aid  of  the  court 
to  compel  the  Wabash  Companv  to  execute  it  on  its  part  by  pooling  its 
earnings.  It  may  be  conceded  that  the  illegal  contract  has  been  per- 
formed on  the  part  of  the  appellant,  though  it  does  not  appear  to  have 
done  anything  more  than  to  sign  the  contract.  The  only  thing  it  could 
do  towards  a  performance  of  the  contract  was  not  to  compete  for  the 
business.  This  was  a  violation  of  its  duty  to  the  public,  and  illeo-al. 
But  a  contract  performed  on  one  side  only  is  not  an  executed  contract. 
Where  an  illegal  act  is  to  be  done  and  paid  for,  the  contract  is  not  ex- 
ecuted until  the  act  is  done  and  paid  for.  A  court  will  not  compel  the 
act  to  be  done,  even  though  it  has  been  paid  for.  Neither  will  it  com- 
pel payment,  although  the  act  has  been  done  ;  for  this  would  be  to  en- 
force the  illegal  contract.  The  illegalit}'  taints  the  entire  contract,  and 
neither  of  the  parties  to  it  can  successfully  make  it  the  foundation  of 
an  action  in  a  court  of  justice.  The  Wabash  Company  performed  the 
service  that  earned  the  mone^'  the  appellant  is  seeking  to  recover.  The 
appellant  earned  no  part  of  it.  There  is  nothing  in  the  record  to  show 
that  the  appellant  would  have  carried  more  or  the  Wabash  Company 
less  freight  if  the  contract  had  never  been  entered  into.  The  money 
demanded  was  received  by  the  Wabash  Compan}'  for  freight  tendered 
to  it  b}'  shippers  themselves,  and  carried  b}'  it  over  its  own  line.  It 
was  legally  bound  to  accept  the  freight  thus  tendered,  and  was  entitled 
to  receive  the  compensation  for  the  carriage,  and  cannot  be  compelled 
to  pay  the  money  tlius  earned,  or  an}'  part  of  it,  to  the  appellant  on 
this  illegal  and  void  contract. 

The  case  of  Brooks  v.  Martin,  2  W^all.  70,  is  not  in  point.  In  that 
case  the  defendant  set  up  an  illegal  contract,  which  had  been  fully  per- 
formed and  executed,  as  a  defence  against  a  demand  that  existed  inde- 
pendently of  the  contract ;  wliereas,  in  this  case,  the  illegal  contract  is 
set  up  bv  the  plaintiff  as  the  foundation  of  its  action.  Strike  this  con- 
tract out,  and  confessedly  the  complaint  states  no  cause  of  action  ; 
leave  it  in,  and  it  states  an  illegal  and  void  cause  of  action. 

Courts  will  not  lend  their  aid  to  enforce  the  performance  of  a  con- 
tract which  is  contrary  to  public  polic}"  or  the  law  of  the  land,  but  will 
leave  the  parties  in  the  plight  their  own  illegal  action  has  placed  them. 
Central  Transp.  Co.  v.  Pullman's  Palace  Car  Co.,  139  U.  S.  24,  11  Sup. 
Ct.  478;  Gibbs  v.  Gas  Co.,  130  U.  S.  396,  9  Sup.  Ct.  553  ;  Texas  & 
P.  Ry.  Co.  V.  Southern  Pac.  Ry.  Co.,  41  La.  Ann.  970,  6  South.  888; 
Morris  Run  Coal  Co.  v.  Barelay  Coal  Co.,  68  Pa.  St.  173  ;  Hooker  u. 
Vandewater,  4  Dcnio,  349.  We  have  not  overlooked  the  case  of  Cen- 
tral Trust  Co.  V.  Ohio  Cent.  R.  Co.,  23  Fed.  306.  The  opinion  in  that 
case  is  not  supported  by  the  authorities,  and  is  unsound  in  principle. 

The  decree  of  the  court  below  is  affirmed.^ 

1  Compare  :  U.  S.  v.  Freight  Ass.,  166  U.  S.  290 ;  U.  S.  v.  Joint  Traffic  Assn.,  171 
U.  S.  505  ;  Anderson  v.  Jett,  89  Ky.  375 ;  R.  R.  v.  R.  R.,  41  La.  Ann.  940  ;  R.  R.  v. 
R.  R.,  66  N.  H.  100;  Leslie  v.  Lorillard,  110  N.  Y.  519  ;  Cleveland  R,  R.  v.  Clesser, 
126  Ind.  362.  — Ed. 


192  BREMNER   V.   WILLIAMS. 


Section  II.     With  Adequate  Facilities. 

ANONYMOUS. 
Common  Pleas,  1348. 

[F.  B.  22  Lib.  Assis.,  pi.  4L] 

I.  de  B.  complains  b}'  his  writ  that  G.  cle  F.  on  a  certain  da}"  and 
year  at  B.  upon  Humber  had  undertaken  to  carrj'  his  mare  taken  on  his 
boat  over  Humber  water  safe  and  sound  ;  whereas  the  said  G.  over- 
loaded liis  boat  with  other  horses,  bv  reason  of  which  overloading  the 
mare  perished,  to  his  wrong  and  damage,  &c. 

Iiichmo7id.  Judgment  of  the  writ;  for  he  does  not  allege  an}'  tort 
in  us  ;  he  onlv  proves  that  he  would  have  an  action  by  a  writ  by  way 
of  covenant,  or  [not  ?]  b}'  way  of  trespass  :   wherefore,  &c. 

Bankwell,  J.  It  seems  that  you  committed  a  trespass  when  j-ou 
overloaded  the  boat,  whereb}-  his  mare  perished,  &c. ;  therefore  answer. 

Richmond.     Not  guilty. 


BREMNER  v.   WILLIAMS. 
Common  Pleas,  1824. 

[1  C.  ^  P.  414.] 

Assumpsit  against  the  defendant,  who  was  proprietor  of  a  Kentish- 
Town  stage,  to  recover  a  compensation  for  an  injury  sustained  by  the 
plaintiff,  in  consequence  of  the  insufficient  state  of  the  defendant's 
coach. 

Best,  C.  J.  The  declaration  states,  that  the  defendant  undertook  to 
carr}'  the  plaintiff  safely.  There  is  no  express  undertaking  that  the  coach 
shall  be  sound,  nor  is  it  necessary ;  for  I  consider  that  every  coach-pro- 
prietor warrants  to  the  public  that  his  stage-coach  is  equal  to  the  journey' 
it  undertakes.  The  counts  go  on  to  charge  negligence,  and  the  case  may 
be  decided  upon  that  ground  also.  Tlie  plaintiff,  it  seems,  complained  in 
Gray's  Inn  Lane  ;  and  if  the  driver  had  then  got  down,  most  likely  the 
accident  would  not  have  happened.  It  is  for  the  jury  to  say,  whether, 
when  a  man's  attention  is  called  to  a  particular  motion  of  the  dicke}-  of 
his  coach,  and  he  does  not  get  down  to  examine  the  cause,  is  not  this 
a  negligence.  The  driver  said,  it  was  the  playing  of  the  springs  ;  but 
it  could  not  be  so,  for  the  plaintiff  would  have  found  that  before.  I 
am  of  opinion,  that  it  is  the  duty  of  a  proprietor  of  a  stage-coach  to 
examine  it  previous  to  the  commencement  of  every  journey.    For,  when 


LOUISVILLE,   NEW   ALBANY,    ETC.    RAILWAY    V.    SNYDER.  193 

ten  or  fourteen  people  are  placed  on  the  outside,  as  is  the  case  with 
many  of  these  stages,  a  master  is  guilty  of  gross  negligence  if  no  in- 
spection of  the  coach  takes  place  immediately  previous  to  each  journey. 
Verdict  for  the  plo.intiff^Bamages  £51.^ 


LOUISVILLE,   NEW   ALBANY   AND    CHICAGO   RAILWAY 
COMPANY    V.    SNYDER. 

Supreme  Court  of  Indiaka,  1888. 

[117  Ind.  435.2] 

Elliott,  C.  J.  The  appellee  was  a  passenger  on  one  of  the  appel- 
lant's trains,  which,  by  the  falling  of  a  bridge,  was  precipitated  into 
"White  River,  and  the  appellee  severely  injured. 

The  twenty -second  instruction  asked  by  the  appellant  and  refused, 
reads  thus  : 

"  The  court  further  instructs  xoxi  that  by  '  negligence,'  when  used  in 
these  instructions,  is  meant  either  the  failure  to  do  what  a  reasonable 
person  would  ordinarih'  have  done  under  the  circumstances  of  the  sit- 
uation, or  doing  what  such  person  would  not  have  done  under  the 
existing  circumstances." 

This  instruction  was  properly  refused.  It  is  not  proper  in  such  a 
case  as  this  to  define  negligence  as  it  is  defined  in  this  instruction.  In 
a  case  of  this  character  the  omission  to  exercise  the  highest  degree  of 
practical  care  constitutes  negligence,  but  in  other  cases  the  failure  to 
exercise  ordinary-  care  constitutes  negligence.  Counsel  are  greatly  in 
error  in  asserting,  as  they  do,  that  the  instruction  correctly  furnishes 
the  standard  for  the  government  of  the  jury.  The  appellant  was,  as 
we  have  substantially  said,  bound  to  do  more  than  prudent  men  would 
ordinarily  do,  since  it  was  bound  to  use  a  very  high  degree  of  care. 

The  dut}'  of  a  railroad  company  engaged  in  carrying  passengers  is 
not  always  discharged  by  purchasing  from  reputable  manufacturers  the 
iron  rods  or  other  iron-work  used  in  the  construction  of  its  bridges. 
The  duty  of  the  compan}'  is  not  discharged  by  trusting,  without  inspect- 
ing and  testing,  to  the  reputation  of  the  manufacturers  and  the  external 
appearance  of  such  materials.  The  law  requires  that  before  the  lives 
of  passengers  are  trusted  to  the  safety  of  its  bridges,  the  company  shall 
carefully  and  skilfully  test  and  inspect  the  materials  it  uses  in  such 
structures.  This  dut\-  of  inspection  does  not  end  when  the  materials 
are  put  in  place,  but  continues  during  their  use,  for  the  company  is 
bound  to  test  them  from  time  to  time  to  ascertain  whether  they  are 

1  Compare:  Readhead  i:  R.  R.,  L.  R.,  4  Q.  B.  379;  Carter  v.  St.  R.  R..  42  Fed.  37  ; 
Sales  r.  Stage  Co.,  4  la.  .547  ;  Ingall.s  v.  Bills,  9  Met.  1  ;  Gilson  i-.  Horse  R.  R.,  76  Mo. 
282:  Faiiri.sh  v.  Reigle.  11  Gratt.  697. —  Ed. 

2  This  case  is  abridged. — Ed. 

13 


194  CAMDEN    AND    ATLANTIC    KAILllOAD    V.    IIOOSEY. 

being  impaired  by  use  or  exposure  to  the  elements.  Manser  y.  Eastern, 
&c.  R.  W.  Co.,  3  L.  T.  (N.  S.)  585  ;  Texas,  &c.  R.  W.  Co.  v.  Suggs, 
62  Texas,  323  (21  Am.  &  Eng.  R.  R.  Cases,  475)  ;  Stokes  v.  Eastern, 
&c.  R.  W.  Co.,  2  F.  &  F.  691 ;  Robinson  v.  New  York,  &c.  R.  R.  Co., 
9  Fed.  Rep.  877;  Richardson  v.  Great  Eastern  R.  VV.  Co.,  L.  R.  10 
C.  R  486  ;  s.  c.  L.  R.  1  C.  P.  Div.  342  ;  Ingalls  v.  Bills,  9  Met.  1 ; 
Funk  V.  PottcM-,  17  111.  406;  Bremner  v.  Williams,  1  Car.  &  P.  414; 
Hegeman  v.  Western  R.  R.  Co.,  13  N.  Y.  9  ;  Alden  v.  New  York  Cen- 
tral R.  R.  Co.,  26  N.  Y.  102. 

The  decision  in  the  case  of  Grand  Rapids,  &c.  R.  R.  Co.  v.  Boyd, 
65  Ind.  526,  is  not  in  conflict  with  this  doctrine,  for  in  that  case  an 
inspection  was  made.  Judgment  affirmed} 


CAMDEN   AND   ATLANTIC   RAILROAD    CO.   v.   HOOSEY. 

Supreme  Court  of  Pennsylvakia,  1882. 

[99  Pa.  St.  497.2] 

Mr.  Justice  Sterrett  delivered  the  opinion  of  the  court,  February 
20th,  1882. 

Tlie  single  breach  of  duty  with  which  the  defendant  below  was  spe- 
cificall}'  charged,  as  the  only  ground  of  liability  to  the  plaintiff  for  the 
injur3'  he  sustained  in  falling  off  the  platform  of  the  car  on  which  he 
was  then  standing,  was  the  failure  of  the  compan}'  to  provide  a  suffi- 
cient number  of  cars  to  seat  all  the  passengers  on  the  train. 

Without  assenting  to  the  broad  proposition  contended  for,  that  a  rail- 
road company,  using  steam  motive  power,  is  bound  absolutely  and  under 
all  circumstances  to  provide  every  passenger  on  the  train  with  a  seat, 
it  cannot  be  questioned  that,  as  a  general  rule  and  under  ordinary  cir- 
cumstances, it  is  the  dut}'  of  such  company  to  provide  suitable  car 
accommodations  and  seats  for  those  whom  it  undertakes  to  carry  ; 
and  if  a  passenger,  exercising  reasonable  care  and  prudence,  is  injured 
in  consequence  of  the  company's  neglect  of  duty  in  that  regard,  the 
latter  is  liable  to  respond  in  damages  for  the  injury  thus  occasioned 
solely  b}'  its  own  negligence.  There  appears  to  be  nothing  in  the  cir- 
cumstances of  this  case  to  exempt  the  comi)any  from  that  general  rule 
of  dut}' ;  and  if  its  negligence  was  the  proximate  cause  of  the  plaintiffs 
injury,  the  liability  of  the  company  would  necessarily  follow,  unless  the 
plaintiff  himself  was  guilt}-  of  negligence  which  contributed  thereto. 
His  contention  was  that,  in  common  with  many  other  passengers,  he 
was  unable  to  procure  a  seat,  and  while  searching  for  one  he  was 
thrown  from  the  platform  of  one  of  the  cars,  and  tlius  sustained  the 

1  Compare:  Grote  v.  R.  R.,  2  Exch.  251  ;  Ford  v.  R.  R.,  2  F.  &  F.  730;  Wheaton 
V.  R.  R.,  .36  Cal.  .^go ;  Hall  r.  Steamboat  Co.,  13  Conn.  319;  Fuller  v.  Talbot,  23  111, 
357  ;  McElroy  v.  R.  R.,  4  C:nsh.  400;  Carroll  v.  R,  R.,  58  N.  Y.  126.  — Ed. 

■^  Opiuiou  only  is  printed.  —  Ed. 


CAMDEN    AND    ATLANTIC    RAILROAD    V.    HOOSEY.  195 

serious  injuiy  which  resulted  in  the  loss  of  his  arm.  The  over-crowded 
condition  of  all  the  cars  composing  the  train,  and  the  consequent  in- 
ability of  the  plaintiff  and  others  to  procure  seats,  were  facts  clearly 
proven. 

It  is  very  evident  from  the  plaintiff's  own  statement  that,  at  the  time 
of  the  accident  and  for  some  minutes  before,  he  was  not  in  the  act  of 
passing  from  one  car  to  another  in  search  of  a  seat :  on  the  contrary, 
he  was  standing  quite  near  the  edge  of  the  platform  with  his  back  to 
the  end  window  of  the  car.  He  was  not  only  in  a  position  of  known 
danger,  but  was  there  voluntaril}'  and  in  disregard  of  the  rules  of  the 
compan}'.  There  is  notliing  in  tlie  testimony  from  which  a  jury  would 
be  justified  in  coming  to  any  other  conclusion.  Wliile  he  was  thus 
standing  on  the  platform,  persons  passed  from  one  car  to  the  other  in 
botli  directions,  and  there  is  nothing  whatever  to  show  that  he  could 
not  have  gone  into  the  next  car  if  he  had  been  so  disposed.  Neither 
he  nor  anv  other  witness  pretends  to  saj-  it  was  necessary  for  him  to 
stop  and  stand  on  the  platform. 

In  the  seventh  point  of  the  defendant  below,  the  court  was  requested 
to  charge  "  That  even  if  a  search  for  a  seat  was  the  real  purpose  of  the 
plaintiff  in  going  out  on  the  platform,  and  even  if  it  were  not  negli- 
gence for  him  to  have  crossed  from  car  to  car  for  that  purpose,  yet,  if 
the  jury  believe  from  the  evidence  that  he  lingered  on  the  platform, 
instead  of  immediately  crossing,  the  verdict  should  be  for  the  defend- 
ant." The  learned  judge,  in  affirming  this  proposition,  added  the  qual- 
ifying words,  "  unless  compelled  tliereto  l)y  circumstances."  The  iurv 
was  tlius  authorized  to  inquire  whether  or  not  tlie  plaintiff  was  com- 
pelled by  circumstances  to  linger  on  the  platform.  We  see  nothing  in 
the  testimony  to  warrant  the  submission  of  this  inquiry  to  the  jury. 
As  already  intimated,  there  was  not  a  particle  of  testimony  from  which 
it  could  be  reasonably  inferred  tliat  plaintiff  was  compelled  to  take  or 
retain  the  [josition  lie  did  on  the  [jlatforra.  Having  shown  by  his  own 
testimony  that  at  tlie  critical  juncture  he  was  in  a  position  where  no  one 
of  ordinary  prudence  should  have  placed  himself,  it  was  incumbent  on 
him  to  prove  that  he  was  there  from  necessity  and  not  from  choice. 
While  the  latter  was  clearly  shown,  there  was  no  testimony  tending  to 
prove  the  former.  The  point  should  have  been  affirmed  without  the 
qualification  complained  of.  But,  for  reasons  already  suggested,  we 
think  the  court  should  have  gone  further,  and  instructed  the  jury  as  re- 
quested in  defendant's  ninth  point,  which  was:  '"That  the  evidence 
shows  negligence  on  the  part  of  [liaintiff  which  contributed  to  produce 
the  injury  complained  of,  and  therefore  he  cannot  recover." 

The  dangerous  position  on  the  platform  in  which  the  plaintiff  volun- 
tarily placed  himself,  while  the  cars  were  in  rapid  motion,  was  undoubt- 
edly the  immediate  cause  of  his  being  jolted  off.  If  there  had  been 
any  testimony  from  which  it  could  have  been  reasonably  inferred  that 
he  was  there  from  necessity  and  not  from  choice,  it  would  have  lieen  a 
question  for  the  jury  :  but,  in  the  absence  of  such  evidence,  it  was  error 


196  MEMPHIS   AND    CHARLESTON    RAILROAD    V.    BENSON. 

to  refuse  the  point,  and  leave  it  to  tlie  jury  to  determine  whether  lie 
was  or  was  not  guilty  of  contributcM-y  negligence. 

Of  all  tlie  passengers  on  a  long  train  of  twenty  over-erowded  cars 
the  plaintiff  was  the  only  one  who  appears  to  have  been  injured.  If  he 
Lad  submitted,  as  many  others  did,  to  tlie  inconvenience  of  standing 
inside  the  cars,  or  if  he  had  been  guilty  of  no  greater  imprudence  than 
passing  from  car  to  car,  while  the  train  was  in  rapid  motion,  it  is  not 
at  all  probable  he  would  have  been  injured.  His  much-to-be-regretted 
misfortune  was  the  result  of  his  own  carelessness.  This  was  clearly 
proved  by  uncontroverted  testimony,  from  which  no  other  conclusion 
could  reasonably  be  drawn.  Judgment  reversed. 

Mercub,  Gordon,  and  Trunkey,  JJ.,  dissented.^ 


MEMPHIS   AND   CHARLESTON   RAILROAD   COMPANY  v. 

BENSON. 

Supreme  Court  op  Tennessee,  1887. 

[85  Tenn.  627.2] 

LuRTON,  J.  This  was  a  suit  for  damages  for  an  alleged  unlawful 
ejection  of  the  defendant  in  error  from  the  train  of  the  plaintiff  in 
enor.  There  was  a  judgment  for  §500  in  favor  of  the  defendant  in 
error  rendered  by  the  circuit  judge,  who  tried  the  case  without  a  jury. 
The  railway  company  have  appealed,  and  a  number  of  reasons  are 
assigned  for  reversal. 

The  defendant  in  error  went  upon  the  passenger  train  at  Memphis, 
Tenn.,  and  went  into  the  car  set  apart  for  ladies  and  gentlemen  travel- 
ling with  ladies.  This  car  at  the  time  was  overcrowded,  and  he  was  un- 
al>le  to  obtain  a  seat,  and  this  condition  of  things  he  saw  before  the  train 
left  Memphis,  yet  he  made  no  demand  at  Memphis,  the  terminal  sta- 
tion, for  a  seat ;  but,  preferring  to  take  his  chances  to  get  a  seat,  he 
remained  on  the  car  standing  until  after  the  train  had  started  upon  its 
trip.  After  the  train  had  gotten  well  out  of  Memphis  the  usual  de- 
mand was  made  upon  him  for  his  ticket.  This  he  declined  to  sur- 
render, taking  the  position  that  he  would  not  surrender  his  ticket  until 
he  had  been  furnished  with  a  seat.  The  conductor  called  his  attention 
to  the  fact  that  there  was  not  a  vacant  seat  in  the  car  in  which  he  was, 
and  offered  to  get  him  a  seat  in  the  next  forward  car,  and  further  say- 
ing that  it  would  be  but  a  short  time  before  seats  would  lie  vacated  by 
passengers  for  local  stations,  and  that  lie  would  then  give  him  a  seat 
in  the  ladies'  car.  This  he  declined,  and  demanded  a  seat  in  the  ladies' 
car  before  surrendering  his  ticket. 

1  Compare:  R.  R.  v.  Fisher,  31  111.  Aj)p.  36  ;  K.  R.  r.  Pater.son,  69  Miss.  421  ;  Har- 
denburgh  v.  R.  R.,  39  Miiin.  3  ;  Miller  v.  Steamboat  Co.,  58  Huu,  424  ;  Werle  i'.  R.  R., 
98  N.  Y.  650.  — Ed. 

2  Opinion  only  is  printed.  —  Ed, 


MEMPHIS    AND    CHARLESTON    RAILROAD   V.    BENSON.  197 

The  demand  of  the  conductor  for  his  ticket  was  renewed  in  a  short 
time,  witli  the  statement  that  he  must  either  get  off  the  train  or  sur- 
render his  ticket.  This  demand  was  again  refused,  and  he  further  de- 
clared that  he  would  not  leave  the  train.  Upon  the  train  stopping  at 
the  next  regular  station  he,  still  refusing  to  leave  the  train,  was  ejected. 

He  neither  surrendered  his  ticket  to  the  conductor  or  showed  that  he 
had  such  ticket,  nor  did  he  state  the  point  to  which  he  was  destined. 
He  bases  his  refusal  to  go  into  the  forward  car  upon  the  ground  that  it 
was  a  smoking-car,  and  that  the  foul  air  of  such  a  car  was  likely  to 
make  him  ill. 

There  can  be  no  doubt  that  the  contract  of  a  carrier  of  passengers 
by  railway  is  one  not  only  to  furnish  the  passenger  with  transportation, 
but  with  the  comfort  of  a  seat.  The  contract  is  no  more  performed  by 
furnishing  him  with  a  seat  without  transportation  than  it  is  when  he  is 
offered  transportation  without  a  seat.  It  is  equally  well  settled  that 
the  passenger  need  not  surrender  his  ticket  until  he  is  furnished  with  a 
seat,  for  the  ticket  is  the  evidence  of  the  contract  which  entitles  him  to 
one.  But  it  cannot  be  that  one  may  ride  free  because  not  furnished 
with  a  seat.  If  the  passenger  chooses  to  accept  transportation  without 
a  seat,  he  must,  on  demand,  pay  his  fare.  If  unwilling  to  ride  without 
transportation  is  furnished  him  in  a  seat,  he  must  get  oft'  at  first  op- 
portunity, and  by  so  doing  may  bring  his  action  for  breach  of  contract, 
and  recover  as  damages  such  sum  as  will  compensate  him  for  such 
breach,  including  such  damages  as  are  the  natural  and  inniiediate  results 
of  such  breach.  Rorer  on  Railroads,  9G8,  969  ;  Davis  v.  Railroad,  53 
Mo.  317  ;  Railroad  lu  Leigh,  45  Ark.  368. 

It  results  that  for  the  indignit}-  and  vexation  consequent  upon  the 
ejection  in  this  case  there  can  be  no  recover}-.  This  result  is  made  the 
more  certain  by  the  facts  of  this  case,  it  appearing  that  at  the  time 
this  passenger  entered  the  car  at  the  terminal  station  he  saw  that  this 
car  assigned  to  ladies,  and  gentlemen  with  ladies,  was  overcrowded, 
and  he  knew  that  he  must  either  ride  standing  or  take  a  seat  in  the  car 
called  the  smoking-car.  He  gave  the  railway  company  no  opportunity 
to  furnish  additional  seats  while  at  this  terminal  station.  We  have  at 
this  term,  in  the  case  of  Railroad  Company  v.  Ida  Wells,  1  Pickle,  613, 
held  that  a  railwa}'  company  may  make  reasonable  regulations  con- 
cerning the  car  in  which  a  passenger  might  be  required  to  ride,  pro- 
vided that  equal  accommodations  were  furnished  to  all  holding  first-class 
tickets,  and  that  a  regulation  assigning  a  particular  car  to  persons  of 
color,  that  car  being  in  all  respects  equal  in  comfort  to  any  other  in 
the  train,  was  reasonable.  This  rule  has  been  sustained  in  the  courts 
of  many  States.  Westchester  Railroad  Company  v.  Miles,  55  Penn. 
209  ;  Chicago  &  Northwestern  Railroad  v. ,  55  111.  185. 

So  we  think  a  regulation  setting  apart  a  car  for  ladies,  or  gentlemen 
accompanied  by  ladies,  a  reasonal)le  regulation.  A  passenger  ni:iy  not 
dictate  where  he  will  set  or  in  which  car  he  will  ride.  If  he  is  furnislied 
accommodations  equal  in  all  respects  to  those  furnished  other  passengers 


198  MEMPHIS    AND   CHARLESTON   RAILROAD   V.    BENSON. 

on  the  same  train,  he  cannot  complain,  and  this  was  the  substance  of 
our  decision  in  the  Ida  Weils  case.  The  doctrine  is  equally  ai)i>licaltle 
here.  This  passenger,  when  he  took  passage  at  Memphis,  did  it  with 
knowledge  that  the  ladies'  car  was  crowded,  and  that  he  would  either 
have  to  ride  standing  in  that  car  or  go  into  the  car  designed  exclu- 
sivel}-  for  gentlemen,  and  in  which  smoking  was  permitted.  The 
requirement  that  he  should  go  temporarily  into  the  smoking-car  under 
these  circumstances  was  not  unreasonable.  lie  ouglit  not  to  have 
started  when  he  did  unless  willing  to  submit  to  what  he  realized  was  an 
inevitable  necessit}'  without  giving  the  carrier  notice  of  his  demand. 

But  upon  another  ground  this  judgment  cannot  be  sustained,  even 
for  damage  for  breach  of  contract.  The  defendant  in  error  in  his  de- 
position states  that  he  had  a  ticket  purchased  at  Austin,  Texas,  which 
entitled  him  to  passage  to  Atlanta,  Ga.,  and  that  one  of  the  coupons 
upon  this  ticket  entitled  him  to  passage  over  the  road  of  plaintitT  in 
error  from  Memphis  to  Chattanooga.  The  ticket  he  does  not  produce, 
nor  does  he  account  for  his  failure  to  produce  it  by  proof  of  its  loss, 
or  that  he  had  subsequently  used  it.  Objection  was  taken  to  this  evi- 
dence, and  the  objection  overruled,  upon  promise  of  counsel,  at  a  sub- 
sequent stage  of  the  trial,  to  account  for  its  non-production  so  as  to  let 
in  secondary  evidence  of  the  fact  of  the  contract  therein  contained. 
This  was  not  done.  It  is  elementary  law  that  the  contents  of  a  written 
or  printed  contract  cannot  be  proven  without  the  failure  to  [)roduce  the 
paper  itself  is  accounted  for.  This  objection  is  fatal  to  the  whole  case 
of  defendant  in  error ;  for  there  is  no  legal  evidence  that  he  had  a 
ticket.     This  being  so,  he  was  rightfully  ejected. 

The  conductor  who  ejected  this  passenger,  while  using  no  unnecessarj' 
force,  did  use  unnecessarily  abusive  language,  such  as  was  calculated  to 
unnecessarily  insult  and  degrade  the  person  ejected.  In  exercising  a 
legal  right  of  ejection,  railway  companies  must  not  do  so  in  an  abusive 
way.  They  are  the  servants  of  the  public,  and  while  their  right  to  en- 
force reasonable  regulations  will  be  upheld,  yet  the  regulations  must 
not  only  be  reasonable  in  themselves,  but  the  manner  and  method  of 
enforcing  such  regulations  must  be  reasonaljle,  and  free  from  unneces- 
sary force,  as  well  as  from  unnecessary  indignity.  The  unreasonable 
demands  of  the  defendant  in  error  afford  some  excuse  for  the  temper 
shown  b}'  the  conductor. 

In  view,  however,  of  the  absence  of  an}'  proof  of  a  legal  character 
that  the  ejected  passenger  had  any  ticket,  and  his  refusal  to  pav  fare, 
and  that,  therefore,  the  relation  of  passenger  and  carrier  did  not  exist, 
we  are  constrained  to  reverse  the  judgment  of  the  circuit  judge,  and 
enter  judgment  here  for  plaintiff  in  error,  the  carrier  in  such  case  not 
being  held  responsible  for  the  ejection.^ 

i  Compare:  R.  R.  v.  Sims,  27  Iiid.  59;  R.  R.  v.  Smith,  70  Kj.  497;  R.  R.  v. 
Drummond,  73  Miss.  813;  R.  R.  v.  Burns,  51  N.  J.  L.  340;  Peek  v'  R.  R.,  70  N.  Y. 
5S7  ;  Bass  v.  R.  R.  36,  Mo.  450.  —  Ed. 


SEARLES    V.   MANN    BOUDOIU   CAR   CO.  199 


SEARLES   V.   MANN   BOUDOIR  CAR  CO. 
Circuit  Court  of  the  United  States,   1891. 

[45  Fed.  Rep.  330.] 

Action  to  recover  damages  for  alleged  wrongful  refusal  of  defendant's 
conductor  to  sell  plaintitT  a  berth  in  a  sleeping-car.  On  the  30th  day 
of  June,  1888,  plaintiff  entered  defendant's  sleeping-car  at  Meridian, 
Miss.,  and  applied  to  the  sleeping-car  conductor  for  a  berth.  He  re- 
ceived answer  that  all  the  space  was  sold,  and  he  could  not  be  accom- 
modated. He  claimed  that  there  was  a  vacant  upper  berth  that  he 
should  have.  This  upper  berth  was  part  of  a  section  that  had  been 
bought  b}-  a  Mr.  Watson,  to  whom  plaintiff  applied  for  the  upper  berth, 
and  was  refused.  There  was  a  rule  of  defendant  company  to  the  effect 
that  no  one  party  could  retain  an  entire  section  when  there  was  appli- 
cants for  berths. 

Hill,  J.  (charging  jury).  The  issues  which  you  are  to  determine 
from  the  evidence,  are :  First.  Did  tlie  conductor  of  the  sleeping-car 
then  owned  and  operated  b}'  the  defendant  company  unlawfully  and 
wrongfully  refuse  to  sell  to  the  plaintiff  a  ticket  entitling  iiim  to  the 
use  and  occu[)ation  of  one  berth  in  said  car  from  Meridian,  in  this  State, 
to  Cincinnati,  in  the  State  of  Ohio,  as  alleged  in  the  declaration,  and 
denied  in  the  plea  of  defendant?  To  entitle  the  plaintiff  to  a  verdict 
in  his  favor  the  burden  is  upon  him  to  reasonably  satisfy  vou  from  the 
evidence  that  the  conductor  then  in  charge  of  said  car  did  unlawfully 
and  wrongfully  refuse  to  sell  plaintiff  such  ticket,  and  i^lace  him  in 
possession  of  one  berth  in  said  car.  The  uncontradicted  testimonv  is 
that  soon  after  the  train  to  which  the  sleeper  was  attached  left  Meridian 
the  plaintitf  did  apply  to  the  conductor  for  a  bertli  in  the  sleeper  from 
Meridian  to  Cincinnati,  and  tendered  him  the  money  for  the  fare  ;  to 
which  the  conductor  replied  that  he  had  no  vacant  berth  at  his  disposal, 
but  that  there  was  one  berth  in  a  section  (or  room,  as  they  are  con- 
structed on  this  class  of  sleepers),  all  of  which  section  had  been  pur- 
chased and  paid  for  in  New  Orleans,  and  wliich  upper  berth  was  not 
then  occupied  b}'  the  purchaser,  and  who  had  onl^'  purchased  the  berth 
to  Birmingham,  Ala. ;  that  if  plaintiff  would  applj'  to  Mr.  Watson,  the 
purchaser  and  occupant,  he  thought  he  would  let  plaintiff  have  it ;  to 
which  plaintiff  replied  that  he  had  the  right  to  it,  and  demanded  it 
on  such  right ;  to  which  the  conductor  replied  that  Mr.  Watson  had  the 
right  to  its  use  to  Birmingham,  and  that  he  could  not  deprive  him  of  it, 
but  that  he  would  ask  him  for  it  for  the  use  of  the  plaintiff.  He  did  so 
a[)ply,  and  Watson  refused  to  surrender  tiie  use  of  the  berth  to  the 
plaintiff.  These  facts  being  admitted,  you  are  instructed  that  the 
defendant  company'  had  the  right  to  sell  the  u.se  of  the  whole  section 
or  room  to  Watson,  and,  having  done  so,  and  received  the  pay  for  it. 


200  SEAKLES    V.   MANN    BOUDOIR   CAR   CO. 

Watson  was  entitled  to  the  use  of  the  entire  section  for  liimself  and 
sneh  other  persons  as  he  niiglit  choose,  and  who  was  otherwise  a 
proper  person  to  occupy  the  sleeper  to  Birmingham,  Ala.,  and  that  tlie 
conductor  was  guilty  of  no  wrong  in  refusing  to  sell  the  use  of  this 
berth  to  the  plaintiff,  and  put  him  in  possession  of  it;  and  therefore 
you  are  instructed  to  return  your  verdict  in  favor  of  the  defendant  on 
the  issue  on  the  first  count  in  the  declaration. 

The  second  issue  which  you  will  determine  from  the  evidence  is  :  Did 
the  conductor  unlawfully  and  wrongfully  refuse  to  sell  the  plaintiff  a 
ticket  entitling  him  to  the  use  of  one  berth  on  the  sleeper  fi-om  Bir- 
mingham to  Cincinnati,  as  alleged  in  the  second  count  in  the  declara- 
tion, and  denied  by  the  plea  of  the  defendant?  The  burden  of  proving 
this  allegation  in  the  plaintiff's  declaration  is  on  him.  There  being  some 
conflict  in  the  testimony  on  this  point,  you  are  instructed  that,  while 
the  conductor  might  have  sold  to  plaintiff  a  ticket  entitling  him  to  the 
use  of  this  berth  from  Birmingham  to  Cincinnati  before  reaching  the 
former  place,  he  was  not  under  any  obligation  to  do  so,  and  his  refusal 
so  to  do  created  no  liability  upon  the  defendant ;  but  that,  when  the 
train  arrived  at  Birmingham,  and  Watson's  right  of  occupancy  had 
ceased,  and  the  plaintiff  had  applied  for  this  or  any  other  vacant  and 
unoccupied  berth  in  the  sleeper,  and  tendered  the  usual  fare  for  the 
use  of  it,  and  was  refused  b}'  the  conductor,  then  such  refusal  would 
have  been  wrongful,  and  the  finding  on  this  issue  should  be  for  the 
plaintiff,  and  entitle  him  to  such  reasonable,  actual  damages  as  in  3-our 
judgment,  from  the  proof,  he  has  sustained  by  reason  of  being  deprived 
of  the  use  of  the  berth  from  Birmingham  to  Cincinnati,  less  the  amount 
of  the  fare.  You  are  further  instructed  that  if  the  proof  shows  that 
application  had  been  made  for  a  berth  in  the  sleeper  by  another  man  at 
Meridian,  before  the  plaintiff  made  application,  then  the  conductor  had 
the  right  to  sell  the  ticket  for  the  berth  to  him  in  preference  to  the 
plaintiff.  You  are  the  sole  judges  of  the  weight  to  be  given  to  the 
testimonj'  of  the  witnesses  on  both  sides.  You  will  reconcile  any  con- 
flict that  ma}'  exist  in  the  testimony  of  the  witnesses,  if  you  can  ;  if 
not,  then  3"0U  will  determine  from  all  the  testimony'  which  most  prob- 
ably gave  the  facts  truly.  In  considering  the  testimony  3'ou  will  con- 
sider the  interest  each  witness  may  have  in  the  result  of  your  verdict, 
the  manner  in  which  they  have  testified,  and  the  reasonableness  of 
their  statements  in  connection   with  all  the  testimou}'. 

The  jur\'  returned  a  verdict  in  favor  of  defendant  on  both  counts  of 
the  declaration.^ 

1  Compare :  Boudoir  Car  Co.  v.  Dupre,  54  Fed.  646 ;  Palace  Car  Co.  v.  Taylor,  65 
lud.  153.  — Ed. 


FELL    V.    KNIGHT.  201 

FELL   y.    KNIGHT. 

ExCHEQDEB,     1841. 

[8  M.  <j-  W.  269.1] 

[Case.  The  declaration  stated  that  the  defendant  did  keep  a  certain 
common  inn  for  the  reception  of  travellers,  that  the  defendant  had  suf- 
ficient room  and  accommodation  for  the  plahitiff,  that  the  plaintiff  was 
ready  and  wiilhig  to  pay  therefor;  nevertheless  that  tlie  defendant  not 
regarding  his  duty  as  such  innkeeper,  denied  the  plaintitf  acconuno- 
dation,   etc. 

Plea.  That  the  defendant  offered  to  the  plaintiff  to  allow  him  to 
sleep  in  an}'  one  of  certain  bedrooms  ;  but  the  jilaintiff  refused  to  sleep 
in  any  of  said  bedrooms,  but  requested  that  candles  might  be  brought 
hiui  in  order  that  he  might  sit  up  all  night  in  another  upstairs  room  in 
said  inn,  which  the  defendant  then  reasonably  refused.] 

Lord  Abinger,  C.  B.  I  am  of  opinion  that  the  plea  is  sufficient.  I 
do  not  think  a  landlord  is  bound  to  provide  for  his  guest  the  precise 
room  the  latter  may  select.  Where  the  guest  expresses  a  desire  of  sit- 
ting up  all  night,  is  the  landlord  bound  to  supply  hun  with  candle-light 
in  a  bedroom,  provided  he  offers  him  another  i)roper  room  for  the  pur- 
pose? The  plea  shows,  that  the  landlord  did  everything  that  was 
reasonable.  The  short  question  is,  is  a  landlord  bound  to  comply  with 
the  caprice  of  his  guests,  or  is  he  justified  in  saying,  You  shall  not  sta}' 
in  a  room  in  this  way,  and  under  these  circumstances?  I  think  he  is 
not  bound  to  do  so.  All  that  the  law  requires  of  him  is,  to  find  for  his 
guests  reasonable  and  proper  accommodation  ;  if  he  does  that,  he  does 
all  that  is  requisite.  I  am  also  inclined  to  think,  notwithstanding  the 
case  which  has  been  cited  of  Rex  o.  Jones,  that  the  declaration  is  l)ad 
for  want  of  an  allegation  of  a  tender  of  the  amount  to  which  the  inn- 
keeper would  be  reasonal)ly  entitled  for  the  entertainuient  furnished  to 
his  guest;  it  is  not  sufficient  for  the  plaintiff  to  allege  that  he  was 
ready  to  pay  ;  he  should  state  further  that  he  was  willing  and  offered 
to  pay.  There  may  be  cases  where  a  tender  may  be  dispensed  with ; 
as,  for  instance,  where  a  man  shuts  up  his  doors  or  windows,  so 
tliat  no  ten<ler  can  be  made  ;  but  I  rather  think  those  facts  ought  to  be 
stated  in  the  indictment  or  declaration  ;  and  I  have,  therefore,  some 
doubt  as  to  the  complete  correctness  of  the  judgment  of  my  Brother 
Coleridge,  in  the  case  cited:  but  it  is  not  necessary  to  decide  that  point 
in  the  present  case.     This  rule  must  be  discharged. 

Alderson,  B.,  and  Rolfe,  B.,  concurred.  Rale  discharged.'^ 

1  This  case  is  abridged.  — En. 

2  Compare:  Claypool  v.  McAllister  20  111.  504;  R  R.  v.  Pearl,  3  Wills  (Tex.),  4. 
—  Ed. 


202  PENISTON    V.    CHICAGO,   ST,    LOUIS,    ETC.    EAILROAD. 


GARDNER  v.  PROVIDENCE  TELEPHONE  CO. 
SuPKEME  Court  of  Rhode   Island,  1901. 

[50  Atl.  Rep.  1014.] 

Per  Curiam.  The  evidence  shows,  as  stated  b3'  the  complainant, 
that  the  defendant  refuses  to  furnish  a  long-distance  extension  set  in 
connection  with  a  grounded  telephone  circuit.  The  evidence  does  not 
convince  a  majority  of  the  court  that  such  a  combination  can  be  made 
generally  without  impairment  of  the  service.  The  uniform  practice  of 
the  company  is  against  this  contention.  The  company  offers  to  annex 
to  the  complainant's  grounded  circuit,  for  a  reasonable  price,  such  an 
extension  set  as  is  appropriate  for  the  circuit,  and  which  it  contends 
will  give  satisfactory  service.  This  is  all  that  the  complainant  can 
demand.  He  is  in  default  in  not  requesting  the  company  to  provide 
what  it  says  it  is  willing  to  give  him,  and  in  insisting  on  the  exact  form 
of  apparatus  which  he  has  installed.  It  is  for  the  compan}-,  not  for  the 
subscriber,  to  determine  the  type  of  apparatus  it  shall  use,  and  there 
is  no  evidence  that  the  type  it  offers  is  inadequate.  These  points  were 
fully  considered  b}"  the  court  upon  the  former  hearing,  as  a  careful 
examination  of  the  opinion  will  show.  It  ma}-  further  be  observed 
that  in  this  case  there  is  no  evidence  that  the  defendant's  charge  for  a 
metallic  circuit  combined  with  a  long-distance  set  is  exorbitant.  The 
well-known  superiority  of  a  metallic  circuit  to  a  grounded  one  in  all 
essential  features,  and  the  greater  cost  of  construction,  make  it  reason- 
able to  charge  more  for  the  use  of  the  metallic  circuit  than  for  the  other. 
The  question  of  price  is  not  strictly  before  the  court,  for  the  complain- 
ant does  not  desire  this  kind  of  service,  and  the  defendant  will  not 
tolerate  the  combination  which  the  complainant  has  made  at  any  price. 

The  motion  for  re-argument  is  denied. 


PENISTON  V.  CHICAGO,  ST.  LOUIS,  AND  NEW  ORLEANS 
RAILROAD   CO. 

Supreme  Court  of  Indiana,  1882. 

[34  La.  Ann.  777.] 

PoCH^,  J.  Plaintiff,  a  passenger  on  a  train  of  the  defendant  from 
Chicago  to  New  Orleans,  was  injured  while  walking  from  an  eating 
station  to  her  train,  on  the  defendant's  road,  and  has  recovered,  in  this 
suit,  a  verdict  and  judgment  for  damages  in  the  sum  of  six  thousand 
dollars. 


PENISTON   V.   CHICAGO,    ST.    LOUIS,   ETC.    RAILROAD.  20o 

The  evidence  is  decidedly  conflicting,  but  a  careful  reading  of  tlie 
record  has  satisfied  us  that  the  following  facts  are  established  : 

On  the  31st  of  January,  1878,  while  plaintiff,  accompanied  by  her 
daughter  and  her  son-in-law,  were  passengers  on  a  train  of  the  defend- 
ant, from  Chicago  to  New  Orleans,  they  came  out  of  their  car  at  about 
eight  o'clock  at  night,  at  Hammond  Station,  then  a  regular  supper 
station  on  said  road,  according  to  its  schedule,  for  the  purpose  of  taking 
necessary  refresliments. 

The  buildiug  in  which  meals  are  served  is  situated  at  a  considerable 
distance  from  the  railroad,  and  is  reached  by  passengers  who  alight  on 
the  main  track  of  the  road,  by  crossing  over  a  side  track,  and  passing 
on  a  large  platform,  and  thence  through  a  narrower  and  covered  plat- 
form which  leads  into  the  hotel. 

On  the  arrival  of  the  train,  a  torchlight  burning  on  an  elevated  plat- 
form affords  ample  light  to  guide  the  steps  of  passengers  to  the  coveied 
platform,  where  two  or  three  lamps  light  up  the  way  to  the  interior  of 
the  building. 

After  supper,  and  on  returning  to  their  train,  plaintiff  and  her  com- 
panions discovered  that  the  torchlight  had  ceased  to  burn,  and  that 
there  was  no  other  light  or  signals  to  guide  their  steps  securely  through 
the  large  platform  in  front  of  the  hotel  to  their  train,  and  that  there 
was  no  officer  or  employee  of  the  company  charged  with  the  duty  of 
pointing  out  to  passengers  the  way  from  such  platform  to  their  train. 
Their  train,  which  they  had  left  on  the  main  track,  had  been  removed 
therefrom  and  placed  on  the  side  track  lying  next  to  the  hotel,  and 
another  train,  since  arrived,  was  then  occupying  the  position  on  the 
main  track,  where  they  had  left  their  train  on  alighting  for  supper. 
They  had  received  no  information,  officially  or  otherwise,  of  those 
changes,  operated  while  the}'  were  in  the  supper  room. 

Finding  a  train  on  the  side  track,  and  believing  that  to  be  a  new 
train,  which  was  standing  between  them  and  their  train,  they  concluded 
to  go  around  said  former  train,  so  as  to  reach  theirs,  and  to  do  so  they 
followed  the  platform  fronting  the  hotel,  and  on  which  there  was  no 
light,  and  not  noticing  the  termination  on  said  platform  on  two  steps 
of  stairs  leading  to  the  main  ground,  plaintiff,  who  walked  in  tlie  lead 
of  lier  companions,  fell  to  the  ground,  dislocating  her  ankle  and  frac- 
turing her  leg  in  two  places,  from  which  she  suffered  great  pain,  was 
confined  to  her  room  for  four  months,  was  compelled  to  walk  on 
crutches  for  eight  months,  and  from  which  injuries  she  has  not  yet 
recovered  the  free  use  of  her  limb. 

Defending  under  a  general  denial,  the  corporation  urges  its  want  of 
responsil)ilit3',  on  the  grounds: 

1.  That  the  liotel  and  platform  are  not  the  property  of  the  company, 
but  of  another  person,  for  whom  defendant  is  in  no  manner  responsible. 

2.  That  the  accident  occurred  through  plaintiff's  own  fault,  who 
should  not  have  attempted  to  walk  around  the  train  on  tiie  aide  track, 
which  was  her  train,  the  approach  of  which,  from  the  eating  station, 


204  PENISTON   V.    CHICAGO,   ST.    LOUIS,    ETC.    RAILROAD. 

was  made  easy  and  safe  !)}•  lights  burning  in  the  covered  platform  and 
in  a  luneii  stand  situated  at  the  rear  end  of  said  gangwa}",  and  who 
should  have  made  inciuiries  concerning  her  train. 

These  propositions  involve  the  discussion  of  the  degree  of  care, 
attention,  and  protection  which  railroad  com[)anies,  as  common  (;ar- 
riers,  owe  to  their  passeng(!rs. 

In  conveving  passengers  through  long  journeys,  such  as  from  Chi- 
cago to  New  Orleans,  at  great  speed  and  with  rapidity,  a  common 
carrier  is  required  b}-  humanity,  as  well  as  by  law,  to  provide  its  pas- 
sengers with  easy  modes  and  to  allow  them  reasonable  time  for  the 
pur[)Ose  of  sustaining  life,  b}'  means  of  food  and  necessary  refresli- 
ments.  Hence  it  is,  that  on  all  such  roads,  arrangements  are  made  lo 
enable  passengers  to  obtain  at  least  two  meals  a  day,  and  that  an- 
nouncement is  made  in  ever}-  passenger  train  b}'  employees  of  the  road 
of  the  approach  of  a  train  to  a  station  where,  under  arrangements  with 
the  company,  meals  are  pre[)ared  for  the  convenience  of  its  passengers. 

It  is  well  established  in  jurisprudence  that  railway  companies  are 
under  the  legal  obligation  to  furnish  safe  and  proper  means  of  ingress 
and  egress  to  and  from  trains,  platforms,  station  approaches,  »S:c.,  and 
it  is  well  settled  that  any  person  injured,  without  fault  on  his  ()art,  l)y 
any  dereliction  of  its  dut}'  in  the  [)remises  b\-  a  railwa}'  company,  can 
recover  damages  against  the  corporation  for  injuries  thus  received. 
Cooley  on  Torts,  pp.  605,  606,  642  ;  Addison  on  Torts,  §  245 ;  Shear- 
man &  Kedfield,  p.  327,  §  275. 

This  principle  has  been  ap[)lied  in  a  case  where  a  passenger,  an  old 
lady,  was  put  out  at  her  destination,  at  a  station  where  there  was  no 
light  to  guide  her  steps,  and  no  employee  of  the  company  to  show  her 
the  way  out  of  the  station  grounds,  and  was  injured  in  trying  to  go 
from  the  station  to  a  friend's  house,  by  falling  from  the  platform. 
I'atten  v.  Chicago  &  Northwestern  R.  R.  Co.,  32  Wis.  528. 

Under  the  same  rule,  a  railway  company  was  held  responsiI)le  for 
injuries  received  b}-  a  passenger  in  walking  from  one  of  its  trains  to  a 
transfer  boat,  In'  falling  on  a  wharf  on  whicli  there  was  not  sufficient 
light.     Beard  v.  Conn.  &  Pass.  Rivers  R.  R.  Co.,  48  Vt.  101. 

In  the  enforcement  of  the  same  rule,  a  railway  company  was  mulcted 
in  damages  in  a  case  where  a  lad}'  passenger,  alighting  from  her  train  at 
her  destination,  and  finding  no  safe  and  convenient  platform  leading  to 
the  highwa}',  attempted  to  walk  across  three  of  the  railroad  tracks,  and 
falling  in  a  "cattle-guard"  filled  with  snow,  was  run  over  and  killed 
by  another  train  of  the  same  companj'.  Ilun,  N.  Y.  Reports,  vol.  13, 
589  ;  see  also  56  Me.  244  ;   16  How.  469. 

The  obligation  of  furnishing,  by  railvvav  companies,  safe  and  easy 
ingress  and  egress  to  and  from  their  platforms,  has  been  extended  so 
as  to  embrace  cases  of  persons  who  were  not  passengers  on  their  roads, 
but  who  came  on  business  to  their  stations,  and  were  injured  by  means 
of  insufficient  or  defective  platforms,  such  as  a  hacktnun  who  had 
transported  passengers  to  a  railroad  depot.     59  Maine,  183;  see  also 


PENISTON    V.   CHICAGO,   ST.    LOUIS,    ETC.    RAILROAD.  205 

Jamison  v,  San  Jose  R.  R.  Co.  (California),  11  Reporter  ;  Law  v.  Grand 
Trunk  R.  R.  Co.  (Maine),  12  Reporter,  p.  397. 

Fully  indorsing  and  concurring  with  this  jurisprudence,  we  hold  that 
the  defendant  compan}-  is  legally  bound  to  furnish  to  its  passengers  an 
easy  and  safe  mode  of  going  to  and  from  its  trains,  and  such  eating 
stations  as  it  may  have  provided  for  the  wants  and  convenience  of  its 
passengers,  and  that  for  the  purpose  of  enforcing  this  obligation,  it  is 
immaterial  whether  the  eating  station  is  owned  and  kept  by  the  com- 
pany or  by  another  person,  with  an  understanding  with  the  company 
as  to  the  time  of  preparing  and  furnishing-  the  meals. 

In  our  opinion,  tliis  ol)lig:ition  imposes  upon  the  railwa}'  company 
the  duty  of  having  ample  and  sufficient  lights,  for  meals  furnished  at 
night,  to  safely  guide  their  passengers  to  and  from  the  hotel  or  eating 
station,  and  in  case  trains  are  removed  from  one  track  to  another 
daring  the  meal,  to  inform,  by'  employees,  the  passengers  on  their 
egress  from  the  eating  or  dining  room,  of  the  exact  location  of  their 
respective  trains. 

We  have  given  due  and  respectful  consideration  to  the  testimony  of 
defendant's  witnesses,  who  state  that  the  platform  was  sufficiently 
liglited  for  all  purposes  needed  by  the  passengers.  These  witnesses 
are  the  train  conductor,  two  or  three  otiier  railroad  employees,  the 
proprietor  of  the  hotel,  his  lessee,  who  keeps  it,  and  the  local  post- 
master, who  are  all  familiar  with  the  place,  are  there  at  the  arrival  of 
eveiT  train,  which  the}'  all  designate  by  their  numbers,  are  familiar 
with  the  rules  of  the  company,  and  know  that  during  the  supper  meal 
the  southbound  train  is  moved  to  the  side  track  from  the  main  ti-ack, 
whicli  is  then  occupied  b}'  the  northbound  train.  It  stands  to  reason 
that  the  ligiit  which  will  be  sufficient  to  enable  such  persons  to  move 
about  in  perfect  safety,  will  not  be  sufficient  to  safely  guide  a  stranger, 
es[iocially  a  woman  who  comes  from  a  distant  land,  is  aroused  in  her 
sleeping  car  by  the  sudden  and  siirill  announcement  by  a  brakeman  of 
"  twenty  minutes  for  supper,"  and  alights  from  her  car  in  the  brilliant 
torchliglit,  is  shown  to  the  hotel  by  numerous  and  zealous  runners  or 
servants,  in  great  eagerness  to  secure  her  patronage,  and  who  lose 
sight  of  her  after  receiving  her  money,  and  now  that  the  torch  is  out, 
she  is  lefc  alone,  unaided  and  unprotected,  to  grope  her  wa}-  in  dark- 
ness to  her  train,  which  is  not  now  where  she  left  it  a  few  minutes 
before.  Hence,  it  is  but  fair,  reasonable,  and  just,  to  hold  the  railway 
compan^v  strictly  responsible  for  the  injuries  whicli  she  received  in 
her  attempt  to  discover  the  location  of  the  train  on  which  she  was  a 
passenger. 

Under  the  peculiar  circumstances  of  this  case,  in  which  plaintiff  is 
shown  to  have  suffered  for  months  excruciating  pains,  was  forced  to 
great  expense  in  the  employment  of  surgeons  and  nin-ses.  and  is  yet  in 
a  crippled  condition,  we  are  not  i)repared  to  say  that  tlie  verdict  of  the 
jury  was  excessive. 

The  district  judge  did  not  err  in  overruling  defendant's  motion  for  a 


20G  CRAKEll   V.    CHICAGO    AND    NORTHWESTERN    RAILWAY. 

new  trial,  urged  on  tlie  ground  of  newly  discovered  evidence,  as  it 
{ipi)eared  that  tlie  witness  on  whose  testimony  it  was  based  could  only 
corroborate  defendant's  other  witnesses. 

The  judgment  of  the  lower  court  is,  therefore   affirmed  with  costs. 

Rehearing  refused. 

Levy,  J.,  absent.^ 


CRAKER  V.   CHICAGO   AND   NORTHWESTERN    RAILWAY 

COMPANY. 

Supreme  Court  of  Wisconsin,  1875. 

[30  Wis.  6.57.2] 

Appeal  from  the  Circuit  Court  for  Sauk  County. 

Action  for  insulting,  violent,  aud  abusive  acts  alleged  to  have  been 
done  to  the  plaintiff  by  the  conductor  of  one  of  defendant's  trains  while 
plaintiff  was  a  passenger  on  such  train.     Answer,  a  general  denial. 

The  court  refused  a  nonsuit,  and  instructed  the  jury,  in  substance, 
that  if  plaintiff,  whilst  a  passenger  as  above  stated,  was  abused,  in- 
sulted, or  ill-treated  by  the  conductor  of  the  train,  defendant  was  liable 
to  her  for  such  injur}'  as  might  be  found  from  the  evidence  to  have 
been  inflicted.  Defendant  requested  the  court  to  instruct  the  jur}-,  that 
upon  the  evidence  plaintiff  was  not  entitled  to  recover,  "  the  acts  of  the 
conductor  complained  of  not  having  been  committed  within  the  scope  of 
his  employment  or  in  the  performance  of  any  actual  or  supposed  dut}' ; " 
but  the  instruction  was  refused. 

Plaintiff  had  a  verdict  for  $1,000  damages;  a  new  trial  was  denied; 
and  defendant  appealed  from  a  judgment  on  the  verdict. 

Ryan,  C.  J.  There  can  be  no  doubt  of  it  in  those  employments  in  which 
the  agent  performs  a  duty  of  the  principal  to  third  persons,  as  between 
such  third  persons  and  the  principal.  Because  the  principal  is  respon- 
sible for  the  dut}',  and  if  he  delegate  it  to  an  agent,  and  the  agent  fail 
to  perform  it,  it  is  immaterial  whether  the  failure  be  accidental  or  wil- 
ful, in  the  negligence  or  in  the  malice  of  the  agent ;  the  contract  of  the 
principal  is  equally  broken  in  the  negligent  disregard,  or  in  the  mali- 
cious violation,  of  the  duty  by  the  agent.  It  would  be  cheap  and  super- 
ficial morality  to  allow  one  owing  a  duty  to  another  to  commit  the 
performance  of  his  duty  to  a  third,  without  responsibility  for  the  mali- 
cious conduct  of  the  substitute  in  performance  of  the  duty.  If  one 
owe  bread  to  anotlier  and  appoint  an  agent  to  furnish  it,  and  the  agent 

I  Compare:  R.  R.  v.  Orr,  46  Ark.  182  ;  R.  R  v.  Nuswanger,  41  Kans.  62.5;  R.  R.  r. 
Lucas,  119  Ind.  58.3;  Knight  v.  R.  R.,  56  Me.  234;  Dodge  ?•.  Steamboat  Co.,  148  Mass. 
207  ;  R.  R.  v.  Sue,  25  Neb.  772 ;  Stewart  v.  R.  R.,  53  Tex.  289  ;  Beard  v.  R.  R.,  27  Vt. 
377— Ed. 

^  This  case  is  abridged.  —  Ed. 


CKAKER   V.    CHICAGO   AND   NORTHWESTERN   RAILWAY.  207 

of  malice  furnish  a  stone  instead,  tlie  principal  is  responsible  for  the 
stone  and  its  consequences.  In  such  cases,  malice  is  negligence.  Courts 
are  generally  inclining  to  this  view,  and  this  court  long  since  affirmed  it. 

In  Bass  v.  Railway  Co.,  we  had  occasion  also  to  consider  somewhat 
the  nature  of  the  obligations  of  railroad  companies  to  their  passengers 
nnder  the  contract  of  carriage;  the  "careful  transportation"  of  Rail- 
road Co.  V.  Finne\-.  On  the  authority'  of  such  jurists  as  Storj',  J.,  and 
Shaw,  C.  J.,  we  likened  them  to  those  of  innkeepers.  And,  speakino* 
of  female  passengers,  we  said:  "To  such,  the  protection  which  is  the 
natural  instinct  of  manhood  towards  their  sex,  is  specially  due  by  com- 
mon carriers."  In  Day  v.  Owen,  5  Mich.  520,  the  duties  of  common 
carriers  are  said  to  "  include  everything  calculated  to  render  the  trans- 
l)ortation  most  comfortable  and  least  annoying  to  passengers."  In 
Nieto -y.  Clark,  1  Clifford,  145,  the  court  says  :  ''In  respect  to  female 
passengers,  the  contract  proceeds  yet  further,  and  includes  an  implied 
stipulation  that  they  shall  be  protected  against  obscene  conduct,  lasciv- 
ious behavior,  and  every  immodest  and  libidinous  approach."  Loner 
before.  Story,  J.,  had  used  this  comprehensive  and  beautiful  language, 
worthy  of  him  as  jurist  and  gentleman,  in  Chamberlain  v.  Chandler,  3 
jMason,  242  :  "  It  is  a  stipulation,  not  for  toleration  mereh-,  but  for  re- 
spectful treatment,  for  that  decency  of  demeanor  which  constitutes  the 
charm  of  social  life,  for  that  attention  which  mitigates  evils  without  re- 
luctance, and  that  promptitude  which  administers  aid  to  distress.  In 
respect  to  females,  it  proceeds  yet  further  ;  it  includes  an  implied  stip- 
ulation against  general  obscenitj',  that  immodest}'  of  approach  which 
borders  on  lasciviousness,  and  against  that  wanton  disregard  of  the 
feelings  which  aggravates  ever\'  evil."  These  things  were  said,  indeed, 
of  passage  bv  water,  but  they  apply  equally-  to  passage  by  railroad. 
Commonwealth  v.   Power,  7  Met.  596. 

These  were  among  the  duties  of  the  appellant  to  the  respondent,  when 
she  went  as  passenger  on  its  train  :  duties  which  concern  public  wel- 
fare. These  were  among  the  duties  which  the  appellant  appointed  the 
conductor  to  perform  for  it,  to  the  respondent.  If  another  person, 
officer  or  passenger  or  stranger,  had  attempted  the  indecent  assault 
which  the  conductor  made  upon  the  respondent,  it  would  have  been  the 
duty  of  the  appellant,  and  of  the  conductor  for  the  appellant,  to  pro- 
tect her.  If  a  person,  known  l\v  his  evil  habits  and  character  as  likely 
to  attempt  such  an  assault  upon  the  respondent,  had  been  upon  the 
train,  it  would  have  been  the  dut}'  of  the  appellant,  and  of  the  conduc- 
tor for  the  appellant,  to  the  respondent,  to  protect  her  against  the  like- 
lihood. Stephen  v.  Smitii,  29  Vt.  160;  Railroad  Co.  v.  Hinds.  53  Pa. 
St.  512  ;  Commonwealth  v.  Power,  supra ;  Nieto  v.  Clark,  svpra ;  and 
other  cases  cited  in  Bass  v.  Railway  Co.  We  do  not  understand  it  to 
be  denied  that  if  such  an  assault  on  the  respondent  had  been  attempted 
by  a  stranger,  and  the  conductor  had  neglected  to  protect  her,  the  ap- 
pellant would  have  been  lial)le.  But  it  is  denied  that  the  act  of  tlie 
conductor  in  maliciously  doing  himself  what  it  was  his  duty,  for  the 


208     BATTON  V.    SOUTH  AND  NORTH  ALABAMA  RAILROAD. 

appellant  to  the  respondent,  to  prevent  others  from  doing,  makes  the 
appellant  liable.  It  is  contended  that,  though  the  principal  would  be 
liable  for  the  negligent  failure  of  the  agent  to  fulfil  the  principal's  con- 
tract, the  i)rincipal  is  not  liable  for  the  malicious  breach  by  the  agent, 
of  the  contract  which  he  was  appointed  to  perform  for  the  principal : 
as  we  understand  it,  tliat  if  one  hire  out  his  dog  to  guard  sheep  against 
wolves,  and  the  dog  sleep  while  a  wolf  makes  away  with  a  sheep,  the 
owner  is  liable  ;  but  if  the  dog  play  wolf  and  devour  the  sheep  himself, 
the  owner  is  not  liable.  The  bare  statement  of  the  proposition  seems  a 
reductio  ad  ahsurdiim.  The  radical  difflcult3'  in  the  argument  is,  that 
it  limits  the  contract.  The  carrier's  contract  is  to  protect  the  passenger 
against  all  the  world  ;  the  appellant's  construction  is,  that  it  was  to 
protect  the  respondent  against  all  the  world  except  the  conductor, 
whom  it  appointed  to  protect  her :  reserAing  to  the  shepherd's  dog  a 
right  to  worry  the  sheep.  No  subtleties  in  the  books  could  lead  us  to 
sanction  so  vicious  an  absurdity. 

We  cannot  think  that  there  is  a  question  of  the  respondent's  right  to 
recover  against  the  appellant,  for  a  tort  which  was  a  breach  of  the 
contract  of  carriage.  We  might  well  rest  our  decision  on  principle. 
But  we  also  think  that  it  is  abundantly  sanctioned  by  authority.  Rail- 
road Co.  V.  Finney,  Bass  v.  Railway  Co.,  Weed  v.  Railroad  Co.,  Nieto 
V.  Clark,  Railroad  Co.  y.  Hinds,  and  Railroad  v.  Rogers,  su2'>ra ;  Rail- 
road Co.  V.  Derby,  14  How.  468  ;  Moore  v.  Railroad  Co.,  4  Gra}-,  465 ; 
Ramsden  v.  Railroad  Co.,  104  Mass.  117  ;  Maroney  v.  Railroad  Co.,  106 
Mass.  153;  Coleman  v.  Railroad  Co.,  106  Mass.  160;  Bryant  v.  Rich,  106 
Mass.  180;  Railroad  Co.  y.Vandiver,  42  Pa.  St.  365;  Railroad  Co.  v.  An- 
thony, 43  Ind.  183;  Railroad  Co.  v.  Blocher,  27  Md.  277;  Railroad 
Co.  V.  Young,  21  Ohio  St.  518  ;  Sherley  v.  Billings,  8  Bush,  147  ;  Sey- 
mour V.  Greenwood,  6  Hurl.  &  N.  359  ;  Baylej*  v.  Railroad  Co.,  L.  R. 
7  C.  P.  415.  There  are  cases,  even  of  recent  date,  which  hold  the 
other  waj-.  But  we  think  that  the  great  weight  of  authority  and  the 
tendency'  of  decision  sanction  our  position. 

By  the  Court.  —  The  judgment  of  the  court  below  is  affirmed.^ 


BATTON  V.  SOUTH  AND  NORTH  ALABAMA  RAILROAD  CO. 

Supreme  Court  of  Alabama,  1884. 

[77  Ala.  591.2] 

SoMERViLLE,  J.  The  action  is  one  of  novel  impression  for  which 
we  nowhere  find  a  precedent.     It  is  a  suit  for  damages  against  a  com- 

1  Compare:  Steamboat  Co.  v.  Brockett,  121  U.  S.  637;  R.  R.  v.  Kelly,  92  lud.  371  ; 
Sherley  i-.  Hillings,  8  Bush,  147;  Goddard  v.  R.  R.,  57  Me.  202;  Dwiuelle  v.  R.  R., 
120  NY.  117.  — Ed. 

2  Opinion  only  is  printed.  —  Ed. 


BATTON   V.    SOUTH    AND    NORTH    ALABAMA   EAILROAD.  209 

men  carrier  —  a,  railroad  compaii}-  —  instituted  by  a  passenger  for  the 
alleged  negligence  of  the  carrier  iu  failing  to  protect  the  plaintitf,  who 
was  a  female,  and  a  single  woman  at  tlie  time  of  bringing  the  suit, 
against  the  nuisance  of  indecent  language  and  conduct  of  certain  un- 
known strangers,  who  proved  disorderl}'  in  the  presence  of  the  plaintiff, 
while  she  was  seated  in  the  ladies'  waiting-room  of  a  railroad  station, 
belonging  to  the  road  line  of  tiie  defendant  company.  No  assault  on  the 
plaintiff  is  shown,  but  only  vulgar  and  profane  language,  and  indecent 
exposure  of  person,  and  disorderly  conduct,  on  the  part  of  two  or  three 
intruders,  who  are  in  no  wise  connected  with  the  defendant,  as  servants 
or  agents. 

It  ma}'  be  admitted  that  the  plaintiff,  Mrs.  Batton,  who,  having  mar- 
ried since  suit  was  brought,  unites  with  her  husband  in  this  action,  was 
a  passenger,  inasmuch  as  she  had  purchased  a  ticket  on  the  road,  and 
had  entered  the  waiting-room  at  the  station,  not  an  unreasonable  length 
of  time  before  the  passenger  train  was  due  at  Calera,  eji  route  for  the 
place  of  her  destination,  which  is  shown  to  be  the  cit}'  of  Birmingham. 
Wabash  R.  R.  Co.  v.  Rector,  9  Amer.  &  Eng.  R.  R.  Cas.  264  ;  Gor- 
don V.  Grand  St.  R.  R.  Co.,  40  Barb.  (N.  Y.)  546. 

The  nuisance  complained  of  appears  to  have  been  an  extraordinary 
occurrence,  and  one  which  no  ofiicer  or  agent  of  the  defendant  com- 
pany is  shown  to  have  been  at  the  time  cognizant,  except  a  colored 
emploN'ee,  or  porter,  whose  duties  were  confined  to  looking  after  the 
baggage  of  the  passengers. 

The  question  thus  presented  is,  whether  it  was  the  dut}'  of  the  de- 
fendant to  keep  on  hand  a  police  force  at  the  station  for  the  protection 
of  passengers  against  the  insults  or  disorderly  violence  of  strangers. 
If  not,  they  would  be  guilt}'  of  no  negligence  which  would  render 
them  liable  in  damages  for  breach  of  duty.  The  broad  proposition  is 
urged  upon  us,  that  it  is  the  duty  of  railroad  companies,  when  acting 
as  common  carriers,  to  use  the  utmost  care  in  protecting  passengers, 
and  especially  female  passengers,  not  only  from  the  violence  and  rude- 
ness of  its  own  officers  and  agents,  but  also  of  intruders  who  are 
strangers.  We  need  not  say  that  there  may  not  be  certain  circum- 
stances under  which  the  law  would  impose  such  a  duty.  There  are 
many  well-considered  cases  which  support  this  view,  but  none  of  them 
fail  to  impose  the  qualification,  that  the  wrong  or  injury  done  the  pas- 
senger by  such  strangers  must  have  been  of  such  a  character,  and 
perpetrated  under  such  circumstances,  as  that  it  might  reasonably 
have  been  anticipated,  or  naturally  expected  to  occur.  In  Britton  v. 
Atlanta  &  Charlotte  Railway  Co.,  88  N.  C.  536  (18  Amer.  &  Eng.  R. 
R.  Cas.  391  ;  s.  c.  43  Amer.  Rep.  748),  the  rule  is  stated  to  be,  that 
"  the  carrier  owes  to  the  passenger  the  duty  of  protecting  him  from 
the  violence  and  assaults  of  his  fellow-passengers  or  intruders,  and 
will  be  held  responsible  for  his  own  or  his  servants'  neglect  in  this  par- 
ticular, when,  by  the  exercise  of  proper  care,  the  acts  of  violence  might 
have  been  foreseen  and  prevented  ;  and  while  not  required  to  furnish  a 

14 


210     BATTON  V.    SOUTH  AND  NORTH  ALABAMA  KAILROAD. 

police  force  sutRcient  to  overcome  all  force,  wlien  unexpected!}'  and 
suddenly  offered,  it  is  his  duty  to  provide  ready  help,  sufRcieiit  to  pro- 
tect the  passenger  from  assaults  from  every  quarter  which  might  rea- 
sonably be  expected  to  occur,  under  the  circumstances  of  the  case  and 
the  condition  of  the  parties."  We  may  assume  this  to  be  the  law  for 
the  purpose  of  this  decision,  as  it  seems  to  be  supported  by  author- 
ity. New  Orleans  Railroad  Co.  v.  Burke,  53  Miss.  2U0  ;  Pittsburg  R. 
R.  Co.  V.  Hinds,  53  Penn.  St.  512  ;  Pittsl)urg  R.  R.  Co.  v.  Pillow,  76 
Penn.  St.  510;  Goddard  v.  Grand  TrunK  R.  R.  Co.  (57  Me.  202),  2 
Amer.  Rep.  39  ;  Cooley  on  Torts,  644-645  ;  Nieto  v.  Clark,  1  Clifford, 
145  ;  Putnam  v.  Broadway  R  R.  Co.,  55  N.  Y.  108. 

In  the  case  of  the  Pittsburg  Railwa}-  Co.  v.  Hinds,  53  Penn.  512, 
supra,  the  plaintiff,  who  was  a  passenger,  sued  the  defendant  compan}' 
for  an  injur}'  received  by  her  at  the  hands  of  a  mob,  who,  defying  the 
power  of  the  conductor,  entered  the  cars  at  a  wayside  station,  and 
commenced  an  affray,  which  resulted  in  an  injury  to  the  plaintiff.  It 
was  held  not  to  be  the  duty  of  the  railroad  companies  to  furnish  their 
trains  with  a  police  force  adequate  to  such  emergencies  ;  the  court  ob- 
serving that  "  they  are  bound  to  furnish  men  enough  for  the  ordinary 
demands  of  transportation,  but  they  are  not  bound  to  anticipate  or 
provide  for  such  an  unusual  occurrence  as  that  under  consideration." 
"  It  is  one  of  the  accidental  risks,"  said  Woodward,  (J.  J.,  "  which  all 
who  travel  must  take  upon  themselves,  and  it  is  not  reasonable  that  a 
passenger  should  throw  it  upon  the  transporter." 

It  cannot  be  said  that  this  duty  of  carriers,  to  take  due  care  for  the 
comfort  and  safety  of  passengers,  is  to  be  confined  to  the  management 
of  their  trains  and  cars;  for  the  better  view  is,  that  it  extends  also, 
in  a  measure,  to  what  has  been  termed  *'  subsidiary  arrangements." 
2  Rorer  on  Railroads,  951.  They  are  bound  to  keep  their  stations  in 
proper  repair,  and  sufficiently  lighted,  and  to  provide  reasonable  ac- 
commodations for  the  passengers  who  are  invited  and  expected  to 
travel  their  roads.  Knight  v.  Portland  R.  R.  Co.,  56  Me.  234  ;  Mc- 
Donald V.  Chicago  R.  R.  Co.,  26  Iowa,  124.  The  measure  of  duty  is 
admitted  by  all  the  authorities,  however,  not  to  be  so  great  as  it  is  after 
a  passenger  has  boarded  the  train,  for  reasons  of  a  manifest  nature. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Schwindling,  8  Amer.  &  Eng.  R.  R. 
Cas.  p.  552,  note. 

We  do  not  think  that  there  is  any  duty  to  police  station-houses,  with 
the  view  of  anticipating  violence  to  passengers,  which  there  are  no  rea- 
sonable grounds  to  ex|)ect.  This  is  as  far  as  the  case  requires  us  to  go. 
Tlie  liability  of  a  common  carrier,  when  receiving  a  passenger  at  a  sta- 
tion for  transportation,  ought  not  to  be  greater  than  that  of  an  inn- 
keeper, who  is  never  held  liable  for  trespasses  committed  ordinaiily  by 
strangers  upon  the  person  of  his  guests.  2  Kent  Com.  593*.  There 
is  nothing  tending  to  prove  that  the  company  had  notice  of  any  facts 
which  justified  the  expectation  of  such  a  wanton  and  unusual  outrage 
to  passengers.     Tiieir  contract  of  safe-carriage  imposed  upon  the  com- 


POUNDER    V.    NORTH    EASTERN    RAILWAY   CO.  211 

pany  no  implied  obligation  to  furnish  a  police  force  for  the  protection 
of  passengers  against  such  insults.  It  is  shown  neither  to  be  com- 
monly necessary  nor  custouiary.  It  was  a  risk  wiiich  was  incidental 
to  one's  presence  anywhere  when  travelling  without  a  protector,  and  it 
was  the  plaintiff's  risk,  not  the  defendant's. 

We  discover  no  error  in  rulings  of  the  court,  and  the  judgment  must 
be  affirmed.^ 


POUNDER  V.  NORTH   EASTERN  RAILWAY   CO. 

Court  of  Appeal,   1892. 

[1892.     1  Q.  B.  385.2] 

Appeal  from  a  judgment  of  the  judge  of  the  County  Court  of  Dur- 
ham, holden  at  Hartlepool,  in  an  action  to  recover  damages  from  the 
defendants  for  assaults  committed  upon  the  plaintiff  whilst  travelling 
upon  the  defendants'  railway. 

The  following  statement  of  facts  is  taken  from  the  judgment  of  A.  L. 
Smith,  J.  :  — 

It  was  proved  that  the  plaintiff,  as  one  of  the  travelling  public,  took 
and  paid  for  a  third-class  ticket  for  conveyance  from  Sunderland  to 
Hartlepool  by  the  defendant  company,  and  that,  when  he  did  so,  the 
compan}-  had  no  notice  that  he  was  exposed  to  any  greater  danger 
than  one  of  the  ordinary  travelling  public.  As  a  matter  of  fact,  the 
plaintiff  was  what  in  Durham  of  late  has  been  known  as  a  "Candy 
Hall  man,"  that  is,  a  man  engaged  ui)on  the  eviction  of  pitmen  from 
their  houses  consequent  upon  disputes  between  them  and  their  masters. 
For  this  reason  the  plaintiff  had  incurred  the  ill-will  of  pitmen  in  parts 
of  that  county,  and  was  in  danger  of  being  molested  by  them.  Hav- 
ing taken  and  paid  for  his  ticket,  the  plaintiff,  accompanied  by  two 
other  "  Candy  Hall  men,"  attempted  to  ride  in  the  guard's  van;  but 
they  were  not  allowed  to  do  so,  it  being  against  the  company's  rules 
that  this  should  be  done,  and  the  plaintiff  and  his  two  friends  were 
placed  by  a  servant  of  the  company  in  a  third-class  carriage  in  which 
were  then  seated  six  or  seven  unexceptional  passengers.  The  carriage 
was  constructed  to  hold  ten  people.  Evidence  was  given  that  at  this 
time  the  company's  servant  was  aware  that  the  plaintiff  was  a  "  Cand\' 
Hall  man,"  and  tliat  he  feared  violence  from  pitmen  at  the  station; 
that  after  the  plaintiff  was  seated  in  the  carriage  six  or  seven  pitmen 
did  rush  in  ;  that  the  companj^'s  servants  did  nothing  towards  eitlier 
attempting  to  get  the  pitmen  out,  or  to  get  the  plaintiff  a  seat  in  an- 
other carriage,  and  that  the  train  started  with  the  six  or  seven  pitmen 

1  Compare:  Flint  v.  Transportation  Co.,  6  Blatch.  158;  Putnam  v.  R.  R.,  55  N.  Y. 
108  ;  Weeks  v.  R.  K.,  72  N.  Y.  50.  — Ed. 
-  This  case  is  abridged.  —  Ed. 


212  POUNDER    V.    NORTH    EASTERN    RAILWAY    CO. 

in  the  overcrowded  carriage  in  which  the  plaintiff  and  his  two  friends 
were  travelling;  that  during  the  journey  to  the  first  station  at  which 
the  train  stopped,  viz.,  Rvhope,  the  plaintiff  was  assaulted  by  the  pit- 
men ;  that  at  Ryhope  these  pitmen  got  out,  and  that  another  rela}'  of 
pitmen  tlien  got  in,  and  repeated  the  assault  upon  the  plaintiff.  For 
these  assaults,  which  were  obviouslv  the  independent  acts  of  the  assail- 
ants, wholly  unconnected  with  the  company,  the  action  was  brought 
against  the  company,  and  the  count}-  court  judge  held  the  defendants 
liable,  and  assessed  the  damages  at  £5. 

The  county  court  judge  stated  that  he  was  of  opinion  that  the  allow- 
ing the  carriage  to  be  overcrowded,  and  especially  after  notice  that  tlie 
pitmen  were  threatening  and  intending  to  assault  the  plaintitf,  and 
also  the  not  removing  either  the  pitmen  or  the  plaintiff  from  the  car- 
riage at  two  different  stations,  was  negligence  on  the  part  of  the 
officers  or  servants  of  the  defendants,  and  that  the  assault  was  the 
consequence  of  such  negligence,  and  under  the  circumstances  not  too 
remote. 

A.  L.  Smith,  J.  In  this  case  the  plaintiff  has  recovered  damages 
against  a  railwa}'  company  for  a  series  of  assaults  committed  upon  him 
by  fellow-passengers  whilst  travelling  upon  the  defendants'  line.  Tlie 
mere  statement  of  the  case  denotes  its  novelty  ;  but  it  is  insisted  tiiat 
tliere  was  evidence  which  supported  the  judgment  of  the  learned  county 
court  judge  ;  and,  so  far  as  it  is  material,  it  is  as  follows  :  —  [The 
learned  judge  stated  the  facts  as  previously  set  out].  The  cause  of 
action,  if  an}',  which  the  plaintiff  had  against  the  defendants  was  for 
an  act  of  omission,  and  this  cannot  be  supported  unless  the  plaintiff 
can  in  the  first  place  establish  a  duty  upon  the  defendants  to  do  that 
which  it  is  said  the}'  have  omitted  to  do.  What  is  the  duty  of  a  rail- 
way company  to  its  passengers  ?  It  arises  out  of  the  contract,  and 
must  be  determined  upon  the  facts  known  to  the  contracting  parties  at 
the  time  of  the  contract.  Ordinarily  it  is  the  duty  of  a  carrier  of  pas- 
sengers arising  out  of  the  contract  of  carriage  to  carry  the  passenger 
upon  tlie  contracted  journey  with  due  care  and  diligence,  and  to  afford 
him  reasonable  accommodation  in  that  behalf.  If  the  carrier  omits 
to  perform  either  of  these  duties,  he  is  responsible  for  the  ordinary  con- 
sequences arising  to  the  ordinary  passenger  therefrom.  There  is  no 
duty  in  these  circumstances  to  take  extraordinary  care  of  a  passenger 
by  reason  of  an  unknown  peculiarity  then  attaching  to  him.  It  is  said 
in  the  present  case  that  the  defendant  company  committed  a  breach  of 
duty  in  allowing  the  carriage  in  which  the  plaintiff  was  travelling  to 
become  overcrowded,  and  that  consequently  they  omitted  to  supjjly  liim 
with  reasonable  accommodation,  which  the  House  of  Lords,  in  the  case 
of  Jackson  v.  Metropolitan  Ry.  Co.,  3  App.  Cas.  193,  had  held  to  be 
evidence  of  negligence  —  i.e.,  breach  of  duty  on  the  defendants'  part. 
lie  it  so.  But  the  obligation  which  the  defendants  undertook  when  they 
contracted  with  the  plaintiff  was  that,  if  they  omitted  to  supply  him 
with  reasonable  accommodation,  they  would  be   liable  for  the  conse- 


FARNSWORTH   V.   GROOT.  213 

quences  usually  arising  therefrom  to  one  of  the  travelling  public  —  not 
for  consequences  wliich  might  result  to  a  man  who  required,  whilst 
travelling,  special  protection  for  his  safety,  and  whicli  fact  was  un- 
known to  the  company  when  the3-  contracted  to  carry  him.  To  au 
ordinary  passenger  the  consequences  of  not  supph'ing  reasonable  ac- 
commodation, which  is  the  breach  of  dut}-  now  set  up,  is  certainh'  not 
his  being  assaulted  by  an  independent  tort  feasor,  which  is  tlie  sole  in- 
jiu'v  or  loss  complained  of  in  the  present  case.  The  cases  put  in  argu- 
ment of  the  company  putting  a  known  lunatic,  or  a  known  biting  dog, 
or  a  known  leper,  or  a  man  known  to  be  drunk  and  quarrelsome,  into  a 
carriage  with  one  of  the  ordinary  travelling  public,  have  no  bearing 
upon  the  present  case,  for  the  consequences  likelj-  to  arise  therefrom 
would  be  well  known  to  the  company  when  they  contracted  to  carry  the 
passenger.  The  consequences  likely  to  arise  from  putting  pitmen  to 
travel  with  a  passenger,  at  the  time  of  the  contract  believed  to  be  one 
of  the  ordinary  travelling  public,  would  not  be  that  the  pitmen  should 
break  the  law  and  assault  their  fellow-passenger.  This  is  the  differ- 
ence between  the  cases.  For  the  reasons  above,  and  I  do  not  say  there 
are  not  others,  the  judgment  of  the  county  court  judge  must  be  re- 
versed, and  judgment  entered  for  the  defendants,  with  costs  here  and 
below.^ 


FARNSWORTH  v.  GROOT. 
Supreme  Court  of  New  York,   1827. 

[6  Cow.  698.] 

On  error  from  the  Schenectady  C.  P.  Groot  sued  Farnsworth  in  a 
justice's  court,  in  trespass,  for  obstructing  the  former  in  passing  a  lock 
on  the  Erie  canal,  and  recovered  $o.  On  appeal  to  the  Schenectady 
C.  P.,  Groot  recovered  Si 5. 

In  tlie  latter  court  it  was  proved  at  the  trial  that  Groot  had  arrived 
at  the  lock  before  Farnsworth,  both  passing  west.  It  was  regularly 
Groot's  turn  to  pass  the  lock,  which  was  not  more  than  a  quarter  empty 
when  Farnsworth  arrived.  Groot  commanded  a  freight  boat,  and  Farns- 
worth a  packet  boat.  Farnsworth,  on  coming  up,  asked  permission  of 
Groot  to  pass  first,  whicli  Groot  refused.  Farnsworth  then  demanded 
it  as  a  right.  On  being  refused,  he  ordered  his  hands  to  push  back 
Groot's  boat,  which,  on  seeing  the  packet  boat  approaching,  the  latter 
had  hauled  up  into  the  jaws  of  the  lock.  The  boats  were  thus  both 
wedged  into  the  lock.  Farnsworth's  hands  attem|)ted  to  push  back 
Groot's  boat,  but  it  was  held  fast  by  his  hands.  This  was  substantially 
the  case,  as  made  out  by  Groot,  the  plaintiff  below.  According  to  the 
defendant's  witnesses,  he  (tlie  defendant  below)  gave  no  orders  to  in- 

1  Compare:  Chicago  &  Alton  R.  R.  v.  Reesbury,  123  111.  9.  —Ed. 


214  FARNSWORTII    V.    GROOT. 

terfere  with  G root's  boat ;  but  it  was  some  of  the  passengers  who 
pushed  the  boat.  After  about  half  an  iiour's  detention,  the  defendant 
below  ordered  his  boat  back,  and  the  plaintiff  below  passed  first. 

The  court  below  denied  a  motion  for  a  non-suit,  at  the  close  of  the 
plaintiff's  testimony  ;  and  after  the  defendant  had  closed  his  case, 
decided  that  his  matters  of  defence  were  insufficient;  and  so  instructed 
the  jur}-,  who  found  for  the  plaintiff  below. 

The  defendant  below  excepted  ;  and  the  cause  came  here  on  the 
record  and  bill  of  exceptions. 

Curia^  per  Savage,  C.  J.  It  is  important,  first,  to  ascertain  the  rela- 
tive rights  of  the  parties.  By  the  fourtli  section  of  the  act  for  the  main- 
tenance and  protection  of  the  Erie  and  Champlain  canals,  and  the  works 
connected  therewith,  passed  April  13,  1820  (sess.  43,  c.  202),  it  is, 
among  other  things,  enacted  that,  "if  there  shall  be  more  boats,  or 
other  floating  things,  than  one  below,  and  one  above  any  lock,  at  the 
same  time,  within  the  distance  aforesaid  (100  yards),  such  boats  and 
other  floating  things  shall  go  up  and  come  down  through  such  lock  by 
turns  as  aforesaid,  until  they  shall  have  passed  the  same  ;  in  order  that 
one  lock  full  of  water  may  serve  two  boats  or  other  floating  things." 
Bj'  the  tenth  section  (p.  186),  it  is  enacted,  "  that,  in  all  cases  in  which 
a  boat,  intended  and  used  chiefly  for  the  carriage  of  persons  and  their 
baggage,  shall  overtake  any  boat,  or  other  floating  thing,  not  intended 
or  used  chiefly  for  such  purpose,  it  shall  be  the  dutj-  of  the  boatman,  or 
person  having  charge  of  the  latter,  to  give  the  former  every  practicable 
facility  for  passing ;  and,  whenever  it  shall  become  necessary  for  that 
purpose,  to  stop,  until  such  boat  for  the  carriage  of  passengers  shall 
have  fully  passed."  And  a  penalty  of  $10  is  imposed  for  a  violation 
of  this  duty. 

It  was  evidently  the  intention  of  the  legislature,  that  packet  boats 
should  not  be  detained  by  freight  boats;  as  it  was  known  that  the 
packets  would  move  faster  than  the  freight  boats;  and,  in  the  language 
of  the  act,  ever}'  facility  was  intended  to  be  afforded  them.  But  the 
right  of  passing  when  both  are  in  motion  might  be  of  little  use  if  the 
packets  must  l)e  detained  at  ever}'  lock  until  all  the  freight  boats  there 
have  passed  before  it.  The  fair  construction  of  the  act  undoubtedly  is, 
that  the  packets  shall  have  a  preference  on  an}'  part  of  the  canal ;  and, 
to  be  of  any  use,  this  right  must  exist  at  the  locks  as  well  as  on  any 
other  part  of  the  canal. 

In  my  judgment,  therefore,  the  defendant  below  had  the  right  of 
entering  the  lock  first,  and  the  plaintiff  below  was  the  aggressor  in 
attempting  to  obstruct  the  exercise  of  that  right.  Did  the  defendant, 
then,  do  more  than  he  lawfully  might  in  endeavoring  to  enforce  his 
rights?  No  breach  of  the  peace  is  pretended.  No  injury  to  the  boat 
was  done.  The  plaintiff  below  was  detained,  and  so  was  the  defendant; 
but  the  detention  was  occasioned  by  the  fault  and  misconduct  of  the 
plaintiff  himself.  What  riglit,  under  this  view  of  the  subject,  has  the 
plaintiff  below  to  complain  ?      The  defendant  below  was  the  injured 


TIERNEY   V.    N.    Y.    Ct^NTEAL    AND    HUDSON    RIVER   R.    R.         215 

part}'.  The  plaintiff  below  was  indeed  liable  to  a  penalty  ;  but  that 
could  not  prevent  the  defendant  below  from  using  proper  means  to 
propel  his  boat,  and  to  remove  the  obstruction  caused  b}-  the  plaintiff 
below.  Suppose,  in  any  part  of  the  canal,  the  defendant  below  had 
overtaken  tlie  plaintiff  below,  and  the  latter  had  refused  to  permit  the 
former  to  pass,  and  had  placed  his  boat  across  the  canal,  would  not  the 
defendant  below  have  been  justified  in  attempting  to  remove  the  ob- 
struction, without  injury  or  breach  of  the  peace?  This,  I  presume,  will 
not  be  denied.  The  defendant  below  has  done  no  more.  I  think, 
therefore,  the  court  below  erred  in  refusing  to  instruct  the  jury  that 
the  plaintiff  was  not  entitled  to  recover ;  and  the  judgment  should  be 
reversed.  Judgment  reversed.^ 


TIERNEY  V.  NEW  YORK   CENTRAL  AND   HUDSON   RIVER 

RAILROAD    CO. 

Court  op  Appeals,  New  York,  1879. 
[76  N.  Y.  305.2] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  affirming  a  judgment  in  favor  of  plain- 
tiff, entered  upon  a  verdict.     Mem.  of  decision  below,  10  Hun,  569. 

This  action  was  brought  to  recover  damages  to  a  car  load  of  cab- 
bages, delivered  to  defendant  for  transportation,  alleged  to  have  been 
sustained  through  the  negligence  of  the  defendant  in  not  forwarding  in 
due  time. 

Danforth,  J.  On  receiving  the  cabbages  in  question  and  payment 
of  freight,  the  defendants  were  bound  to  forward  them  immediatelv  to 
their  destination,  —  such  was  the  duty  of  a  carrier  of  goods  at  common 
law,  for  if  he  had  not  the  means  of  transportation  he  might  refuse  to 
receive  the  goods,  and  such  is  the  dut}'  of  a  railroad  corporation.  This 
is  so  under  the  statute.  By  its  terms  the  corporation  is  required  to 
furnish  "accommodations"  only  for  such  property  as  shall  be  offered  a 
reasonable  time  before  the  arrival  of  the  time  fixed  by  public  notice 
for  the  starting  of  its  trains.  Laws  of  1850,  chap.  140,  §  36.  And  in 
the  absence  of  a  legal  excuse  the  carrier  is  answerable  for  any  dela}^ 
beyond  the  time  ordinarily  required  for  transportation  by  the  kind  of 
conveyance  which  he  uses.  Blackstock  v.  N.  Y.  &  Erie  R.  R.  Co.,  20 
N.Y.48;  Mann  v.  Burchard,  40  Vt.  326;  Illinois  C.  R.  R.  Co.  v. 
McClennan,  54  111.  58. 

None  of  the  exceptions  to  the  charge  were  well  taken.     The  learned 

1  Compare :  Briddon  v.  R.  R.,  28  L.  J.  (N.  S.)  Ex.  51  ;  Heilliwell  v.  R.  R.,  7  Fed.  68 ; 
Johnson  r.  R.  R.,  90  Ga.  810;  Galena  Co.  v.  Rae,  18  111.  488;  Selver  v.  Hall,  2  Mo. 
App.  557  ;  Express  Co.  v.  Smith,  33  Oh.  St.  511  ;  R.  R.  v.  Nelson,  1  Cold.  272.  — Ed. 

2  This  case  is  abridged.—  Ed. 


216  TIEIiNEY    V.    N.    Y.    CENTRAL    AND    HUDSON    KIVER   R.    R. 

trial  judge  instructed  the  jur}-  "that  it  was  the  duty  of  the  defendant 
to  transport  the  property-  in  question  to  New  York  b}'  the  first  train, 
unless  a  reasonable  and  proper  excuse  for  the  delaj'  is  shown."  To 
this  tiiere  was  an  exception;  "and  in  case  there  was  a  pressure  of 
freight  cars,  the  car  in  question  should  be  forwarded  before  forwarding 
ordinar\- non-perishable  property."  "  The\-  made  this  contract  in  re- 
gard to  perishable  property,  and  it  was  their  dut\'  to  forward  it  b}'  the 
first  train,  unless  there  was  such  a  pressure  upon  them  of  property  of  a 
similar  kind  to  be  transported,  and  which  had  arrived  before  this,  to 
make  it  impossible,"  and  again  he  saj-s,  "  it  would  be  a  good  excuse 
if  there  was  a  pressure  of  a  similar  kind  of  property*  to  be  forwarded, 
but  it  would  not  be  an  excuse  if  there  was  a  pressure  of  other  non- 
perishable  property  to  be  forwarded."     To  this  defendant  excepted. 

The  defendant's  counsel  requested  the  judge  to  charge  ''that  de- 
fendant is  not  liable  for  delay,  if  such  delay  was  caused  by  an  unusual 
press  of  business,  and  an  accumulation  of  cars  be3'ond  the  ordinary' 
capacit}-  of  the  road,"  and  the  judge  replied,  "  within  the  limitations 
I  have  now  given,  I  so  charge"  —  to  this  qualification  there  was  an 
exception.  It  will  be  seen  that  the  attention  of  the  trial  court  was  not 
called  to  the  question  of  right  of  priorit}'  to  transportation  among 
freights  received  at  different  times.  The  whole  charge  is  applicable  to 
property  received  at  the  same  time,  and  does  not  necessarily,  nor  bj- 
any  fair  implication,  direct  a  discrimination  in  favor  of  perishable  prop- 
erty received  after  non-perishable  ;  no  request  to  charge  in  regard  to 
it  was  made  ;  the  testimony  did  not  indicate  when  the  propert}-  was 
received  which  was  sent  forward  on  the  8th  and  on  the  9th  before  3.20 
in  the  afternoon.  The  plaintiff's  car  left  Albanv  at  seven,  and  to  make 
the  question  available  to  the  defendant  the  judge  should  have  been 
asked  to  direct  the  jury  in  regard  to  it.  Elwood  ik  W.  U.  Tel.  Co.,  45 
N.  Y.  549.  I  do  not  think  that  the  question  is  before  us,  nor  indeed  that 
the  evidence  was  sufficient  to  raise  it  in  the  trial  court.  The  case  as 
presented  is  that  of  freight  at  East  Albany  ;  when  it,  except  that  of 
the  plaintiff's,  reached  there  does  not  appear.  It  was  all  in  the  pos- 
session and  control  of  the  defendant  at  one  and  tlie  same  time.  But  if 
the  charge  of  the  trial  judge  is  construed  as  instructing  the  jury  that 
the  pressure  of  non-perishable  property  should  not  excuse  the  delay,  I 
am  of  the  opinion  that  he  was  right,  and  the  principle  of  law  enunciated 
by  him  sound.  Wibert's  Case,  supra,  is  not  to  the  contrary.  There 
the  question  was  not  pi-esented  as  to  the  duty  of  a  carrier  to  discrimi- 
nate in  favor  of  perishable  freight  over  non-perishable.  That  decision, 
therefore,  should  not  control  this  case.  It  is  itself  i)laced  upon  a  quali- 
fication to  the  peremptory  direction  of  the  statute,  and  while  it  should 
be  followed  in  similar  cases,  is  not  to  be  extended.  The  distinction 
suggested  by  the  charge  exists.  In  Cope  v.  Cordova,  1  Rawie,  203, 
the  court,  while  holding  that  the  liability  of  the  carrier  l\v  vessel  ceases 
when  he  lands  the  goods  at  a  proper  wharf,  adds,  "it  is  beside  the 
question  to  say  that  perishable  articles  may  be  landed  at  improper 


TIERNEY   V.   N.   Y.    CENTRAL   AND   HUDSON   RIVEK   R.   R.         217 

times  to  the  great  damage  of  the  consignee,  —  when  such  special  cases 
arise  they  will  be  decided  on  their  own  circumstances."  Such  a  case 
was  presented  to  this  court  in  McA.ndrevv  v.  Whitlock,  52  N.  Y.  40, 
where  a  carrier  was  lield  liable  for  the  loss  of  certain  perishable  prop- 
erty, licorice,  under  circumstances  which  would  have  exonerated  him 
from  liability  if  it  had  not  been  perishable.  In  Marshall  v.  N.  Y.  C. 
R.  R.  Co.,  45  Barb.  502  (affirmed  by  this  court,  48  N.  Y.  6G0),  it  was 
held  b}-  the  Supreme  Court  that  where  two  kinds  of  property',  one  per- 
ishable and  the  other  not,  are  delivered  to  a  carrier  at  the  same  time 
by  different  owners  for  transportation  and  he  is  unable  to  carry  all  the 
propert}',  he  may  give  preference,  and  it  is  his  duty  to  do  so,  to  that 
which  is  perishable.  In  this  court  the  case  turned  upon  other  points  ; 
but  referring  to  the  rule  above  stated,  Hunt,  J.,  says:  "The  principle 
laid  down  is  a  sound  one,  and  in  a  proper  case  would  I  think  be  held 
to  be  the  law.     It  is  not  here  important." 

The  rule  is  a  correct  one  and  is  equally  applicable  to  the  dut}'  of 
the  carrier  in  whose  hands  freight  has  so  accumulated  that  he  must 
give  priority  to  one  kind  over  another. 

In  requiring  the  defendant  to  receive  all  kinds  of  property,  including 
perishable,  the  statute  may  be  construed  as  imposing  upon  it  such  obli- 
gations and  duties  as  are  required  for  the  proper  and  safe  carriage  of 
that  kind  of  goods.  In  that  respect  assimilating  a  railway  corporation 
to  a  common  carrier,  bound  by  the  obligations  of  the  common  law  to 
carry  safely  and  immediately  the  goods  intrusted  to  him,  —  having  in  the 
exercise  of  care,  speed,  and  priority  of  transportation,  some  reference 
to  the  natural  qualities  of  the  article  and  the  effect  upon  it  of  exposure 
to  the  elements.  McAndrew  v.  \yhitlock,  52  N.  Y.  40;  Marshall  v. 
N.  Y.  C.  R.  R.  Co.,  48  N.  Y.  660  ;  Peet  v.  Chicago  &  N.  W.  R.  R  Co., 
20  Wis.  594.  We  may  also  take  into  consideration  the  fact  tliat  the 
freight  in  question  was  not  onl}'  perishable  but  was  known  to  be  so  by 
both  parties  and  was  shipped  as  such  and  with  knowledge  on  the  plain- 
tiff's part  of  the  custom  of  the  defendant  to  give  a  preference  in  trans- 
portation to  such  goods,  and  the  parties,  though  silent,  may  be  regarded 
as  adopting  the  custom  as  part  of  the  contract.  Cooper  v.  Kane,  19 
Wend.  386 ;  Peet  v.  Chicago  &  N.  W.  R.  R.  Co.,  20  Wis.  598.^ 

1  Compare:  R.  R.  v.  Bonand,  58  Ga.  180;  Van  Horn  v.  Templeton,  11  La.  Ann. 
52;  Hoadley  !'.  Transportation  Co.,  115  Mass.  304;  Branch  v.  R.  R.,  77  N.  C.  347; 
Weed  V.  R.  R.,  17  N.  Y.  362  ;  Feet  v.  R.  R.,  20  Wis.  594.  —  Ed. 


218  COUPLAND   V.    HOUSATONIC   KAILROAD   CO. 


COUPLAND   V.  HOUSATONIC   RAILROAD    CO. 

Supreme  Court  of  Coxxecticut,   1892, 

[61  Conn.  531.1] 

Action  to  recover  the  value  of  a  mare  and  colt  injured  while  being 
transported  by  the  defendant  railroad  company;  brought  to  the  Supe- 
rior Court  in  New  Haven  County. 

The  complaint  alleged  as  follows  :  That  on  the  25th  day  of  April, 
1889,  the  plaintiff  was  the  owner  of  a  valuable  mare  and  colt,  the  mai-e 
being  then  worth  the  sum  of  $2,000,  and  the  colt  the  sum  of  $500  ;  that 
said  marc  was  on  that  day  at  Great  Bairington  in  the  State  of  Massa- 
chusetts; that  the  defendant  was  then  and  still  is  a  common  carrier  by 
railroad,  operating  a  line  of  railroad  from  said  Great  Harrington  to  the 
town  of  Danbur}-  in  this  State  ;  that  on  said  day  the  defendant  under- 
took, as  a  common  carrier,  for  a  valuable  consideration  received  of  the 
plaintiff,  to  transport  said  mare  and  colt  over  the  line  of  its  railroad 
from  said  Great  Harrington  to  said  Danlniry  ;  and  that  the  plaintiff  by 
his  agent  delivered  said  mare  to  the  defendant  at  said  Great  Barring- 
ton,  and  the  defendant  received  the  same  on  board  of  a  box  freight 
car.  The  complaint  then  averred  the  uasuitableness  of  the  car,  as 
being  of  insufficient  height  and  without  partitions,  bj'  reason  of  which 
the  mare  hit  her  head  violently  against  the  roof,  and  became  greatlv 
exciterl,  and  finally,  by  a  sudden  side  movement  of  the  car,  was  thrown 
down  and  her  leg  broken,  by  reason  of  all  which  she  soon  after  died; 
and  the  colt,  being  newly  foaled,  died  also.  It  also  averred  that  the 
plaintiff's  agent,  soon  after  the  train  started,  finding  that  the  mare  was 
in  great  danger  of  injury,  requested  the  conductor  to  leave  the  car  u|>on 
a  side  track  at  a  station  they  were  about  to  stop  at,  but  that  he  refused 
to  do  so. 

The  case  was  tried  to  the  jury,  before  F.  B.  Hall,  J.,  and  a  verdict 
rendered  for  the  plaintiff.  The  defendant  appealed  on  the  ground  of 
error  in  the  charge  and  rulings  of  the  court.  Tlie  case  is  fully  stated 
in  tiie  opinion. 

Seymour,  J.  .  .  .  The  defendant  was  bound  to  furnish  a  suitable 
car  for  the  transportation  of  horses.  It  was  still  the  duty  of  the  jury 
to  inquire  whether  it  did  so.  If  the  box  car  was  unsuitable  for  the 
transportation  of  ordinary  horses  of  the  value  placed  by  the  plaintiff's 
agent  on  these,  then  the  defendant  might  be  liable  thougli  it  informed 
the  plaintiff  of  its  better  accommodations  for  a  higher  price.  But  if 
the  jury  found  that  the  I)ox  car  was  suitable  for  the  ordinary  business  of 
transporting  horses,  though  lower  between  joints  than  the  special  cars 
furnished  at  a  higher  price,  that  the  plaintiff  was  aware  of  such  defects 
and  was   informed  about   such  special  cars,  and  the   additional  price 

1  This  case  is  abridged.  —  Ed. 


DAVIS    V.    GARKETT.  219 

charged  for  them  was  not  unreasonable,  and  that,  thereupon,  he  at- 
tempted to  guard  against  the  possible  effect  of  the  lower  space  and 
acquiesced  in  the  use  of  the  car  vvliich  was  used,  then  it  was  competent 
for  them  to  further  find,  from  such  facts  alone,  that  the  plaintiff  assumed 
the  risks  incident  to  the  defect  in  question.  We  thinii  the  defendant 
was  entitled  to  a  charge  to  that  effect,  and  that  the  instructions  given 
were  too  restrictive  in  this  particular. 

The  next  reason  for  appeal  is  tliat  the  court  charged  "  that  if,  in  the 
course  of  transportation  of  the  animals,  the  agents  of  the  defendant 
in  cliarge  of  tlie  train  were  apprised  or  informed  by  the  plaintiffs  agent 
that  tlie  transportation  was  causing  fright  to  the  mare,  whereby  she 
was  acting  badly  and  was  in  danger  of  being  killed  or  hurt  by  further 
transportation,  and  if  the  defendant's  agents  were  requested  by  the 
plaintiff's  agent  to  set  the  car  on  the  side  track  at  Ashley  Falls,  to  pre- 
vent further  danger  to  the  mare,  it  was  the  dut}-  of  the  defendant's 
agents  so  to  do  if  it  could  reasonabl}-  have  been  done,  and  the  neglect 
to  do  so  would  have  been  negligence  on  the  part  of  the  defendant." 
"What  actually  occurred  between  the  agents  of  the  respective  parties 
in  this  behalf  was  a  matter  of  dispute  which  was  left  to  the  jury  to 
decide. 

The  charge  was  correct.  Most  of  the  objections  urged  against  it  are 
answered  by  the  limitation  stated  by  the  court,  and  it  was  the  defend- 
ant's duty  to  have  complied  with  the  requests  "  if  it  could  reasonably 
have  been  done."  The  charge  was  appropriate  to  the  facts  as  claimed 
by  the  plaintiff.  ^ew  trial  ordered.^ 


DAVIS   V.   GAERETT. 
Common  Pleas,  1830. 

[6  Bln;f.  716.2] 

TiNDAL,  C.  J.  There  are  two  points  for  the  determination  of  the 
court  upon  this  rule  ;  first,  whether  the  damage  sustained  by  the  plaintiff 
was  so  proximate  to  the  wrongful  act  of  the  defendant  as  to  form  the 
subject  of  an  action  ;  and,  secondly,  whether  the  declaration  is  sufficient 
to  support  the  judgment  of  the  court  for  the  plaintiff. 

As  to  the  first  point,  it  appeared  upon  the  evidence  that  the  master 
of  the  defendant's  barge  had  deviated  from  the  usual  and  customary 
course  of  the  voyage  mentioned  in  the  declaration  without  any  justifiable 
cause ;  and  that  afterwards,  and  whilst  such  barge  was  out  of  her  course, 
in  conse(|iience  of  stormy  and  tem[)estuous  weather,  tiie  sea  communi- 
cated with  the  lime,  which  thereby  became  heated,  and  the  barge  caught 

1  Conijiarp. :  Nnnn  v.  R.  H.,  71  Ga.  710;  Raben  v.  R.  R.,  73  la.  579;  Sevier  v.  R. 
R.,  61  Miss.  8  ;  Hunt  v.  R.  R.,  94  Mo.  255. —  Ed. 

2  Only  the  opiuion  is  priuted.  —  Eu. 


220  DAVIS   V.    GARRETT. 

fire,  and  the  master  was  compelled  for  the  preservation  of  himself  and 
the  crew  to  run  the  barge  on  shore,  where  I)oth  the  lime  and  the  barge 
were  entirely  lost. 

Now  the  first  objection  on  the  part  of  the  defendant  is  not  rested,  as 
indeed  it  could  not  be  rested,  on  the  particular  circumstances  which 
accompanied  the  destruction  of  the  barge  ;  for  it  is  obvious  that  the 
legal  consequences  must  be  the  same,  whether  the  loss  was  immediately, 
b\'  the  sinking  of  the  barge  at  once  by  a  heavy  sea,  when  she  was  out 
of  her  direct  and  usual  course,  or  whether  it  happened  at  the  same 
place,  not  in  consequence  of  an  immediate  death's  wound,  but  by  a  con- 
nected chain  of  causes  producing  the  same  ultimate  event.  It  is  onl}' 
a  variation  in  the  precise  mode  b}-  which  the  vessel  was  destroyed, 
which  variation  will  necessaril}'  occur  in  each  individual  case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  necessarj'  con- 
nection between  the  wrong  of  the  master  in  taking  the  barge  out  of  its 
proper  course,  and  the  loss  itself;  for  that  the  same  loss  might  have 
been  occasioned  by  the  verj*  same  tempest,  if  the  barge  had  proceeded 
in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would  never, 
or  only  under  ver}'  peculiar  circumstances,  entitle  the  plaintiff  to  re- 
cover. For  if  a  ship  is  capture^l  in  the  course  of  deviation,  no  one  can 
be  certain  that  she  might  not  have  been  captured  if  in  her  proper  course. 
And  yet,  in  Parker  v.  James,  4  Campb.  112,  where  the  ship  was  cap- 
tured whilst  in  the  act  of  deviation,  no  such  ground  of  defence  was 
even  suggested.  Or,  again,  if  the  ship  strikes  against  a  rock,  or  per- 
ishes b}'  storm  in  the  one  course,  no  one  can  predicate  that  she  might 
not  equally  have  struck  upon  another  rock,  or  met  with  the  same  or 
another  storm,  if  pursuing  her  right  and  ordinary  voyage. 

The  same  answer  might  be  attempted  to  an  action  against  a  defend- 
ant who  had,  b}'  mistake,  forwarded  a  parcel  b}-  the  wrong  conveyance, 
and  a  loss  had  thereby  ensued ;  and  3'et  the  defendant  in  that  case 
would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong-doer 
can  be  allowed  to  apportion  or  qualify  bis  own  wrong ;  and  that  as  a 
loss  has  actually  happened  whilst  his  wrongful  act  was  in  operation  and 
force,  and  which  is  attributable  to  his  wrongful  act,  he  cannot  set  up  as 
an  answer  to  the  action  the  bare  possibilit\'  of  a  loss,  if  his  wrongful 
act  had  never  been  done.  It  might  admit  of  a  different  construction  if 
he  could  show,  not  only  that  the  same  loss  might  have  happened,  but 
that  it  must  have  happened  if  the  act  complained  of  had  not  been  done  ; 
but  there  is  no  evidence  to  that  extent  in  tiie  present  case. 

Upon  the  objection  taken  in  arrest  of  judgment,  the  defendant  relies 
on  the  autiiority  of  thsj  case  of  Max  v.  R(jljerts.  The  first  ground  of 
objection  upon  which  the  judgment  for  the  defendant  in  that  case  was 
affirmed  is  entirely  removed  in  the  present  case.  For  in  this  declara- 
tion it  is  distinctly  alleged,  that  the  defendant  had  and  received  the 


DAVIS   V.    GARRETT.  221 

lime  in  and  on  board  of  his  barge  to  be  by  him  carried  and  conve3-ed 
on  the  voyage  in  question. 

As  to  the  second  objection  mentioned  by  the  learned  lord,  in  giving 
the  judgment  in  that  case,  viz.,  that  there  is  no  allegation  in  tlie  declar- 
ation that  there  was  an  undertaking  to  carry  directly  to  Waterford,  it 
is  to  be  observed,  that  this  is  mentioned  as  an  additional  ground  for 
the  judgment  of  the  court,  after  one,  in  which  it  ma}'  fairly  be  inferred 
from  the  language  of  the  chief  justice  that  all  the  judges  had  agreed  ; 
and  which  first  objection  appears  to  us  amp)}-  suflicient  to  support  the 
judgment  of  the  court.  We  cannot,  therefore,  give  to  that  second' 
reason  the  same  weight  as  if  it  were  the  only  ground  of  the  judgment 
of  the  court.  And  at  all  events,  we  think  there  is  a  distinction  between 
tlie  language  of  this  record  and  that  of  the  case  referred  to.  In  the  case 
cited,  tlie  allegation  was,  that  it  was  the  duty  of  the  defendant  to  carry 
the  goods  directh-  to  Waterford  ;  but  here  the  allegation  is,  "  tliat  it 
was  his  duty  to  carrj'  the  lime  by  and  according  to  the  direct,  usual, 
and  customary  way,  course,  and  passage,  without  any  voluntary  and 
unnecessary  deviation  and  departure." 

The  words  "  usual  and  customary"'  being  added  to  the  word  direct, 
more  particularly  when  the  breach  is  alleged  in  "  unnecessarily  deviat- 
ing from  the  usual  and  customary  way,"  must  be  held  to  qualify  the 
meaning  of  the  word  direct,  and  substantially  to  signify  that  the  ves- 
sel should  proceed  in  the  course  usually  and  customarily  observed  in 
that  of  her  voyage. 

And  we  cannot  but  think  that  the  law  does  imply  a  duty  in  the  owner 
of  a  vessel,  whether  a  general  ship  or  hired  for  the  special  purpose  of 
the  voyage,  to  proceed  without  unnecessary  deviation  in  the  usual  and 
customar}'  course. 

We  therefore  think  the  rule  should  be  discharged,  and  that  judgment 
should  be  given  for  the  plaintiff.  Kule  discharged} 

1  Compare :  Express  Co.  v.  Kounk,  8  Wall.  342 ;  Phillips  r.  Brigham,  76  111.  520 ; 
R.  R.  V.  Kelley,  125  Pa.  St.  620;  Church  v.  R.  R.,  6  S.  D.  235;  R.  R.  v.  Allisou,  59 
Tex.  193.  — Ed. 


222  BALLE^•TINE    V.    NOUTH    MISSOURI    RAILROAD   CO. 


BALLENTINE  v.   NORTH    MISSOURI  RAILROAD    CO. 
Supreme  Court  of  Missouri,  1886. 

[40  Mo.  491.1] 

Fagg,  J.,  delivered  the  opinion  of  the  court. 

Tlie  law  defining  and  regulating  the  duties  of  railroad  companies 
as  common  carriers,  is  so  well  settled  now  as  to  admit  of  little  (loul)t 
or  controversy.  As  preliminary,  however,  to  the  determination  of  the 
questions  involved  in  tliis  case,  it  may  be  stated  that  the  laws  of  the 
State  require  each  railroad  corporation  to  "furnish  sufficient  accommo- 
dations for  the  transportation  of  all  such  passengers  and  property  as 
shall,  within  a  reasonable  time  previous  thereto,  be  offered  for  trans- 
portation," &c.  R.  C.  1855,  p.  435,  §  44.  The  sufficiency  of  such 
accommodations  must  be  determined  by  the  amount  of  freight  and  the 
number  of  passengers  ordinarily  transported  on  any  given  line  of  road. 
The  duty  of  a  company  to  the  public,  in  this  respect,  is  not  peculiar  to 
any  season  of  the  year,  or  to  any  particular  emergency  that  may  pos- 
sibly arise  in  the  course  of  its  business.  The  amount  of  business 
ordinarily  done  b}-  the  road  is  the  only  proper  measure  of  its  obligation 
to  furnish  transportation.  If  by  reason  of  a  sudden  and  unusual  de- 
mand for  stock  or  produce  in  the  market,  or  from  any  other  cause, 
there  should  be  an  unexpected  influx  of  business  to  the  road,  this  obli- 
gation will  be  fully  met  by  shipping  such  stock  or  produce  in  the  order 
and  priority  of  time  in  which  it  is  offered.  Galena  &  Chicago  R.  R. 
Co.  V.  Rae  et  al.,  18  III.  488  ;  Weibert  v.  N.  Y.  &  Erie  R.  R.  Co., 
19  Barb.  36.  Any  other  construction  of  the  statute  would  be  unjust  to 
the  railroad  companies  without  benefiting  the  public. 

It  seems  to  have  been  the  theory  upon  which  the  petition  proceeded 
in  this  case,  that  it  was  the  dut}'  of  the  defendant  to  have  shipped  the 
live  stock  in  the  order  of  time  in  which  it  was  ofl'ered  with  reference  to 
the  entire  line  of  its  road,  and  not  to  any  particular  station.  This  is 
altogether  unreasonable,  and  in  its  practical  operation  would  work  great 
hardships  upon  all  companies.  Its  duty  in  this  respect,  then,  must  be 
understood  in  reference  to  each  particular  station,  and  not  to  the  opera- 
tion of  the  road  as  a  whole. 

Whilst  it  may  be  difficult  to  lay  down  any  general  rule  upon  this 
subject  sufficiently  accurate  in  its  terms  to  cover  all  cases  that  may 
possibly  occur,  still  we  think  it  can  be  approximated  by  saying  that  its 
means  of  transportation  must  be  so  distributed  at  the  various  stations 

1  This  case  is  abriJired.  —  Ed. 


AYRES   V.   CHICAGO    AND   NORTHWESTERN    RAILWAY.  223 

for  receiving  passengers  and  freight  along  the  entire  line  of  its  road, 
as  to  afford  a  reasonable  amount  of  accommodation  for  all.  Or,  to 
state  it  differently,  no  one  station  should  be  furnislied  with  means  of 
transportation  to  the  prejudice  of  another,  but  a  distribution  should  be 
made  among  all  in  something  like  a  just  proportion  to  the  amount  of 
business  ordinarily  done  at  each.  Its  duty  is  to  receive  all  freight  that 
may  be  offered,  and  witliin  a  reasonable  time,  and  in  the  order  in  which 
it  is  offered,  to  transport  the  same  to  any  other  point  on  the  line  of  its 
road  that  may  be  designated  by  the  owner  or  other  person  having  charge 
of  it.  This  duty  to  the  public  must  be  performed  in  good  faith,  and 
without  partiality-  or  favor  to  an}-  one.  Every  individual  in  the  com- 
munity, by  complying  with  the  prescribed  rules  and  regulations  of  the 
compan}-,  has  an  equal  right  to  demand  the  performance  of  this  dut}-, 
and  the  law  does  not  excuse  a  discrimination  in  this  respect  an}-  more 
than  it  does  a  discrimination  in  favor  of  any  particular  station  on  the 
line  of  its  road.  In  ever}-  proceeding,  therefore,  against  a  railroad 
company  for  neglect  of  its  duty,  either  in  receiving  or  shipping  freight 
in  tlie  order  in  which  it  is  offered,  the  good  faith  of  its  conduct  in  tiie 
matter  complained  of  is  a  proper  subject  of  inquiry,  and  if  found  to  be 
wanting,  should  receive  the  severest  condemnation  and  censure  from 
the  courts  of  the  country.^ 


AYRES   V.    CHICAGO   AND   NORTHWESTERN   RAILWAY. 

Supreme  Court  of  Wisconsin,  1888. 

[71    Wis.  372:  37  N.    W.  432.] 

The  amended  complaint  is  to  the  effect  that  the  defendant,  being  a 
common  carrier  engaged  in  the  transportation  of  live  stock,  and  accus- 
tomed to  furnish  cars  for  all  live  stock  offered,  was  notified  by  the 
plaintiffs,  on  or  about  October  13,  1882,  to  have  four  such  cars  for  the 
transportation  of  cattle,  hogs,  and  sheep  at  its  station  La  Valle,  and 
three  at  its  station  Reedsburg,  ready  for  loading  on  Tuesday  morning, 
October  17,  1882,  for  transportation  to  Chicago ;  that  the  defendant 
neglected  and  refused  to  provide  such  cars  at  either  of  said  stations  for 
four  days,  notwithstanding  it  was  able  and  might  reasonably  have  done 

1  Helliwell  v.  Grand  Trunk,  17  Fed.  68;  Chicago  Co.  v.  Fisher,  31  III.  App.  36; 
Deming  v.  Grand  Trunk,  48  N.  H  155;  Tennessee  R.  R.  v.  Nelson,  1  Cold.  272; 
E.  R.  j;.  Nicholson,  61  Tex.  491.  —  Ed. 


224  AYRES    V.   CHICAGO    &   JSOKTHWESTERN    RAILWAY. 

SO ;  and  also  neglected  and  refused  to  carry  said  stock  to  Chicago  with 
reasonaljle  diligence,  so  that  they  arrived  there  four  days  hiter  than 
they  otherwise  would  have  done  ;  whereby  tlie  plaintiffs  suffered  loss 
and  damage,  by  decrease  in  price  and  otherwise,  $1,700.^ 

Cassoday,  J.  We  are  forced  to  the  conclusion  that  at  the  time 
the  plaintiffs  apphed  for  the  cars  the  defendant  was  engaged  in  the 
business  of  transporting  live  stock  over  its  roads,  inchiding  the  line  in 
question,  and  that  it  was  accustomed  to  furnish  suitable  cars  therefor, 
upon  reasonable  notice,  whenever  it  was  witliin  its  power  to  do  so ; 
and  that  it  held  itself  out  to  the  public  generally  as  such  carrier  for  hire 
upon  such  terms  and  conditions  as  were  prescribed  in  the  written  con- 
tracts mentioned.  These  things,  in  our  judgment,  made  the  defendant 
a  common  can-icr  of  live  stock,  with  such  restrictions  and  limitations  of 
its  common-law  duties  and  liabilities  as  arose  from  the  instincts,  habits, 
propensities,  wants,  necessities,  vices,  or  locomotion  of  such  animals, 
under  the  contracts  of  carriage.  This  proposition  is  fairly  deducible 
from  what  was  said  in  Ricbardson  v.  C.  &  N.  W.  R.  Co.,  61  Wis.  601, 
and  is  supported  by  the  logic  of  numerous  cases.  North  Penn.  R.  Co. 
V.  Commercial  Bank,  123  U.  S.  727  ;  Moulton  v.  St.  P.,  M.  &  M.  R.  Co., 
31  Minn.  85,  12  Am.  &  Eng.  R.  Cas.  13;  Lindsley  v.  C,  M.  &  St.  P. 
R.  Co.,  36  Minn.  539  ;  f:vans  v.  F.  R.  Co.,  Ill  Mass.  142  ;  Kimball  o. 
R.  &  R  R.  Co.,  26  Vt.  247,  62  Am.  Dec.  567  ;  Rixford  i.  Smith,  52 
N.  H.  355  ;  Clarke  v.  R.  &  S.  R.  Co.,  14  N.  Y.  570,  67  .Am.  Dec.  205  ; 
South  &  N.  A.  R.  Co.  V.  Henlein,  52  Ala.  606  ;  Baker  v.  L.  &  N.  R. 
Co.,  10  Lea,  304,  16  Am.  &  Eng.  R.  Cas.  149  ;  Philadelphia  W.  &  B. 
R.  Co.  V.  Lehman,  56  Md.  209  ;  McFadden  v.  M.  P.  R.  Co.,  92  Mo. 
343  ;  3  Am.  &  Eng.  Cyclop.  Law,  pp.  1-10,  and  cases  there  cited. 
This  is  in  harmony  with  the  statement  of  Parke,  B.,  in  the  case  cited 
by  counsel  for  the  defendant,  that  ''at  common  law  a  carrier  is  not 
bound  to  carry  for  every  person  tendering  goods  of  any  description, 
but  his  ohUr/dtion  is  to  carry  according  to  his  public  profession^ 
Johnson  ".  Midland  R.  Co.,  4  Exch.  372.  Being  a  common  carrier  of 
live  stock  for  hire,  with  the  restrictions  and  limitations  named,  and 
holding  itself  out  to  the  public  as  such,  the  defendant  is  bound  to  fur- 
nish suilalilc  cnrs  for  such  stock,  upon  reasonable  notice,  whenever  it 
can  do  so  with  reasonable  diligence  without  jeopardizing  its  other  busi- 
ness as  such  common  carrier.  Texas  &  P.  R.  Co.  v.  Nicholson,  61 
Tex.  491  ;  Chicago  «fc  A.  R.  Co.  v.  Erickson,  91  111.  613;  Ballentine  v. 
N.  M.  R.  Co  ,  40  Mo.  491  ;  Guinn  v.  W.,  St.  L.  &  P.  R.  Co.,  20  Mo. 
App.  453. 

Whether  the  defendant  could  with  such  diligence  so  furnish  upon  the 
notice  given,  was  necessarily  a  question  of  fact  to  be  determined.  The 
plaintiff's,  as  such  shippers,  had  the  right  to  command  the  defendant  to 
furnish  such  cars.  liut  they  had  no  right  to  insist  upon  or  expect  com- 
pliance, excei)t  upon  giving  reasonable  notice  of  the  time  when  they 
would  be  required.  To  be  reasonable,  such  notice  must  have  been  suf- 
^  The  statemeut  of  facts  and  part  of  the  opinion  arc  omitted.  —  Ed. 


AYRES   V.   CHICAGO   &   NORTHWESTERN    RAILWAY.  225 

ficient  to  enable  the  defendant,  with  reasonable  diligence  under  the  cir- 
cumstances then  existing,  to  furnish  the  curs  without  interfering  with 
previous  orders  from  other  shippers  at  the  same  station,  or  jeopardizing 
its  business  on  other  portions  of  its  road.  It  must  be  remembered  that 
the  defendant  has  many  lines  of  railroad  scattered  through  several  dif- 
ferent States.  Along  each  and  all  of  these  different  lines  it  has  stations 
of  more  or  less  importance.  The  company  owes  the  same  dut}'  to 
shippers  at  any  one  station  as  it  does  to  the  shippers  at  an}'  other 
station  of  the  same  business  importance.  The  riglits  of  all  shippers 
applying  for  such  cars  under  the  same  circumstances  are  necessarily 
equal.  No  one  station,  much  less  an}'  one  shipper,  has  the  right  to 
command  the  entire  resources  of  the  company  to  the  exclusion  or  pre- 
judice of  other  stations  and  other  shippers.  Most  of  such  suitable  cans 
must  necessarily  be  scattered  along  and  upon  such  different  lines  of 
railroad,  loaded  or  unloaded.  Man}'  will  necessaril}-  be  at  the  larger 
centers  of  trade.  The  conditions  of  the  market  are  not  always  the 
same,  but  are  liable  to  fluctuations,  and  may  be  such  as  to  create  a 
great  demand  for  such  cars  upon  one  or  more  of  such  lines,  and  ver}' 
little  upon  others.  Such  cars  should  be  distributed  along  the  different 
lines  of  road,  and  the  several  stations  on  each,  as  near  as  may  be  in 
proportion  to  the  ordinary  business  requirements  at  the  time,  in  order 
that  shipments  ma}'  be  made  with  reasonable  celerity.  The  require- 
ment of  such  fair  and  general  distribution  and  uniform  vigilance  is  not 
only  mutually  beneficial  to  producers,  shippers,  carriers,  and  purchasers, 
but  of  business  and  trade  generally.  It  is  the  extent  of  such  business 
ordinarily  done  on  a  particular  line,  or  at  a  particular  station,  which 
properly  measures  the  carrier's  obligation  to  furnish  such  transporta- 
tion. But  it  is  not  the  duty  of  such  carrier  to  discriminate  in  favor  of 
the  business  of  one  station  to  the  prejudice  and  injury  of  the  business 
of  another  station  of  the  same  importance.  These  views  are  in  harmony 
with  the  adjudications  last  cited. 

The  important  question  is  whether  the  burden  was  upon  the  plaintiffs 
to  prove  that  the  defendant  miglit,  with  such  reasonable  dihgence  and 
without  tlius  jeopardizing  its  other  business,  have  furnished  such  cars 
at  tlie  time  ordered  and  upon  the  notice  given  ;  or  whether  such  burden 
was  upon  the  defendant  to  prove  its  innbility  to  do  so.  We  find  no 
direct  adjudication  upon  the  question.  Ordinarily,  a  plaintiff  alleging 
a  fact  has  the  burden  of  proving  it.  This  rule  has  been  applied  by  this 
court,  even  where  the  complaint  alleges  a  negative,  if  it  is  susceptible 
of  proof  by  the  plaintiff.  Hepler  v.  State,  58  Wis.  46.  But  it  has  been 
held  otherwise  wiiere  the  only  proof  is  peculiarly  within  the  control  of 
the  defendant.  Mecklem  v.  Blake,  16  Wis.  102;  Beckmann  v.  Henn, 
17  Wis.  412;  Xoonan  i>.  Ilsley,  21  Wis.  144;  Great  Western  R.  Co. 
V.  Bacon,  30  111.  352  ;  Brown  v.  Brown,  30  La.  Ann.  511.  Here  it  may 
have  been  possible  for  the  plaintiffs  to  have  jn-oved  that  there  were  at 
the  times  and  stations  named,  or  in  the  vicinity,  empty  cars,  or  cars 
which  had  reached  their  destination  and  might  have  been  emptied  with 

15 


226  PEOPLE   V.   CHICAGO   AND   ALTON   RAILROAD. 

reasonable  diligence,  but  they  could  not  know  or  prove,  except  by 
agents  of  the  defendant,  that  any  of  such  cars  were  not  suliject  to  prior 
orders  or  superior  obligations.  The  ability  of  the  defendant  to  so  fur- 
nish with  ordinary  diligence  upon  the  noiice  given,  upon  the  principles 
stated  was,  as  we  think,  peculiarly-  within  the  knowledge  of  the  defend- 
ant and  its  agents,  and  hence  the  burden  was  upon  it  to  prove  its  in- 
ability to  do  so.  "Where  a  shipper  applies  to  the  proper  agenc\'  of  a 
railroad  compan}-  engaged  in  the  business  of  such  common  carrier  of 
live  stock  for  sucii  cars  to  be  furnished  at  a  time  and  station  named, 
it  becomes  the  duty  of  the  compan}'  to  inform  the  shipper  within  a 
reasonable  time,  if  practicable,  whether  it  is  unable  to  so  furnish,  and 
if  it  fails  to  give  such  notice,  and  has  induced  the  shipper  to  believe 
that  the  cars  will  be  in  readiness  at  the  time  and  place  named,  and  the 
shipper,  relying  upon  such  conduct  of  the  carrier,  is  present  with  his 
live  stock  at  the  time  and  place  named,  and  finds  no  cars,  there  would 
seem  to  be  no  good  reason  why  the  company  should  not  respond  in 
damages.  Of  course  these  observations  do  not  involve  the  question 
whether  a  railroad  compan}'  may  not  refrain  from  engaging  in  such 
business  as  a  common  carrier ;  nor  whether,  having  so  engaged,  it  may 
not  discontinue  the  same. 

The  court  very  properh*  charged  the  jur}',  in  effect,  that  if  all  the 
cars  had  been  furnished  on  time,  as  the  two  were,  it  was  reasonable  to 
presume,  in  the  absence  of  any  proof  of  actionable  negligence  on  the 
part  of  the  defendant,  that  the}'  would  have  reached  Chicago  at  the 
same  time  the  two  did  —  to  wit,  Thursday,  October  19,  1882,  a.  m., 
whereas  they  did  not  arrive  until  Friday  evening.  This  was  in  time, 
however,  for  the  market  in  Chicago  on  Saturday-,  October  21,  1882. 
This  necessarily  limited  the  recovery  to  the  expense  of  keeping,  the 
shrinkage,  and  depreciation  in  value  from  Thursday  until  Saturdav. 
Chicago  &  A.  R.  Co.  v.  Erickson,  91  111.  613.  The  trial  court,  how- 
ever, refused  to  so  limit  the  recoverv,  but  left  the  jury  at  libertv  to  in- 
clude such  damages  down  to  Monday,  October  23,  1882.  For  this 
manifest  errror,  and  because  there  seems  to  have  been  a  mistrial  in 
some  other  respects,  the  judgment  of  the  circuit  court  is  reversed,  and 
the  cause  is  remanded  for  a  new  trial. 

By  the  Court.  —  Ordered  accordinglj'. 


PEOPLE  V.    CHICAGO   AND   ALTON   RAILivOAD. 

Supreme  Court  of  Illinois,  1889. 

[130  ///.  175:  22  N.  E.  857.] 

Bailey,  J.  This  was  a  petition  for  a  mandamus,  brought  by  the 
people  of  the  state  of  Illinois,  on  the  relation  of  the  attorney-general, 
against  the  Chicago  &  Alton  Railroad  Company,  to  compel  said  com- 
pany to  establish  and  maintain  a  station  for  the  receipt  and  discharge 
of  passengers  and  freight  at  Upper  Alton,  in  Madison  County.    .  .  . 


PEOPLE    V.    CHICAGO    AXD    ALTON    RAILROAD.  227 

There  is,  so  far  as  we  have  been  able  to  discover,  no  provision  of 
any  statute  which  can  be  appealed  to  in  support  of  the  prayer  of  the 
petition.  Neither  in  the  defendant's  charter  nor  in  any  other  act  of 
the  general  assembly  does  there  seem  to  be  any  attempt  to  prescribe 
the  rales  by  which  the  defendant  is  to  be  governed  in  the  location  of 
its  freight  and  passenger  stations,  or  to  confer  upon  the  Circuit  Court 
the  power  to  interpose  and  direct  as  to  their  location.  It  is  plain 
that  the  act  of  1877,  the  only  one  to  which  we  are  referred  in  this 
connection,  can  have  no  application.  That  act  provides  "that  all 
railroad  companies  in  this  state,  carrying  passengers  or  freight,  shall, 
and  they  are  hereby  required  to,  build  and  maintain  depots  for  the 
comfort  of  passengers,  and  for  the  protection  of  shippers  of  freight, 
where  such  railroad  companies  are  in  the  practice  of  receiving  and 
delivering  passengers  and  freight,  at  all  towns  and  villages  on  the 
line  of  their  roads  having  a  population  of  five  hundred  or  more." 
2  Starr  &  C.  St.  1924.  While  it  is  true  that  Upper  Alton  is  a  town 
having  a  population  of  more  than  500,  it  affirmatively  appears  that 
it  is  not  a  place  where  the  defendant  has  been  in  the  pi'actice  of  re- 
ceiving and  delivering  passengers  and  freight,  and  so  is  not  within 
the  provisions  of  said  act.  The  petition  seeks  to  have  the  defendant 
compelled  to  establish  a  station  where  none  has  heretofore  existed, 
while  the  statute  merely  requires  the  erection  of  suitable  depot 
buildings  at  places  where  the  railway  company  has  already  located  its 
stations,  and  is  in  the  practice  of  receiving  and  discharging  passen- 
gers and  freight.  In  point  of  fact,  the  attorney-general,  in  his  argu- 
ment upon  the  rehearing,  admits  that  there  is  no  statute  upon  which 
his  prayer  for  a  mandamus  can  be  based;  the  position  now  taken  by 
him  being  that  upon  the  facts  alleged  in  the  petition  and  admitted 
by  the  demurrer,  the  legal  duty  on  the  part  of  the  defendant  to 
establish  a  freight  and  passenger  station  on  its  line  of  railway  in  the 
town  of  Upper  Alton  arises  by  virtue  of  the  principles  of  the  common 
law. 

It  is  undoubtedly  the  rule  that  railway  companies,  in  the  absence  of 
statutory  provisions  limiting  and  restricting  their  powers,  are  vested 
with  a  very  broad  discretion  in  the  matter  of  locating,  constructing, 
and  operating  their  railways,  and  of  locating  and  maintaining  their 
freight  and  passenger  stations.  This  discretion,  however,  is  not 
absolute,  but  is  subject  to  the  condition  that  it  must  be  exercised 
ill  good  faith,  and  with  a  due  regard  to  the  necessities  and  conven- 
ience of  the  public.  Railway  companies,  though  private  corporations, 
are  engaged  in  a  business  in  which  the  public  have  an  interest,  and 
in  which  such  companies  are  public  servants,  and  amenable  as  such. 
This  doctrine  has  been  repeatedly  announced  by  this  and  other 
courts.  Thus,  in  Marsh  v.  Railroad  Co.,  64  111.  414,  whicb  was  a 
bill  for  the  specific  performance  of  a  contract  by  which  the  railway 
company  agreed  to  locate  its  passenger  and  freight  depots  at  a  par- 
ticular point  in  a  certain  town,  and  at  no  other  point  in  said  town, 


228  PEOPLE    V.    CHICAGO    AND    ALTON    KAILROAD. 

we  said:  "  This  is  not  a  case  vvhicli  concerns  merely  the  private  inter- 
ests of  two  suitors.  It  is  a  matter  where  the  public  interest  is  in- 
volved. Railroad  companies  are  incorporated  by  authority  of  law, 
not  for  the  promotion  of  mere  private  ends,  but  in  view  of  the  public 
good  they  subserve.  It  is  the  circumstance  of  public  use  which 
justifies  the  exercise  on  their  behalf  of  the  right  of  eminent  domain 
in  the  taking  of  private  property  for  the  purpose  of  their  construction. 
They  have  come  to  be  almost  a  public  necessity;  the  general  welfare 
being  largely  dependent  upon  these  modes  of  intercommunication, 
and  the  manner  of  carrying  on  their  operations."  In  the  same  case, 
in  holding  that  the  contract  there  in  question  ought  not  to  be  specifi- 
cally enforced,  we  further  said:  "Railroad  companies,  in  order  to 
fulfil  one  of  the  ends  of  their  creation,  —  the  promotion  of  the  public 
welfare,  —  should  be  left  free  to  establish  and  re-establish  their  depots 
wheresoever  the  accommodation  of  the  wants  of  the  public  may 
require. " 

In  Railway  Co.  v.  People,  120  111.  200,  which  was  a  petition  for  a 
mandainus  to  compel  the  railway  company  to  repair,  generallj',  a 
certain  portion  of  its  road,  and  to  increase  its  passenger  trains 
thereon,  we  said:  ''There  can  be  no  doubt  of  the  duty  of  a  railway 
company  to  keep  its  road  in  a  reasonable  state  of  repair,  and  in  a  safe 
condition.  Nor  is  there  any  doubt  of  its  duty  to  so  operate  it  as  to 
afford  adequate  facilities  for  the  transaction  of  such  business  as  may 
be  offered  it,  or  at  least  reasonably  be  expected.  .  .  .  The  company, 
however,  is  given,  as  it  should  be,  a  very  large  discretion  in  deter- 
mining all  questions  relating  to  the  equipment  and  operation  of  its 
road;  hence  courts,  as  a  general  rule,  will  not  interfere  with  the 
management  of  railways  in  these  respects,  except  where  the  act  sought 
to  be  enforced  is  specific,  and  the  right  to  its  performance  in  the 
manner  proposed  is  clear  and  undoubted." 

It  is  in  recognition  of  the  paramount  duty  of  railway  companies  to 
establish  and  maintain  their  depots  at  such  points,  and  in  such  man- 
ner, as  to  subserve  the  public  necessities  and  convenience  that  it  has 
been  held  by  all  the  courts,  with  vei-y  few  exceptions,  that  contracts 
materially  limiting  their  power  to  locate  and  relocate  their  depots  are 
against  public  policy,  and  therefore  void.  Railroad  Co.  v.  Mathers, 
71  111.  592;  Railroad  Co.  v.  Mathers,  104  111.  257;  Bestor  v.  Wathen, 
60  111.  lo8;  Linder  o.  Carpenter,  62  111.  309;  Railroad  Co.  v.  Ryan, 
11  Kas.  602:  Railroad  Co.  v.  Seely,  45  Mo.  212;  Holladay  v.  Patter- 
son, 5  Or.  177;  Tayl.  Corp.  §  162,  and  authorities  cited. 

We  have  now  to  consider  whether  in  the  light  of  the  principles 
above  laid  down,  a  right  to  the  relief  prayed  for  is  sufficiently  shown 
by  the  petition.  There  can  be  no  doubt  that  the  act  sought  to  be 
enforced  (the  establishment  and  maintenance  of  a  freight  and  passen- 
ger station  on  the  defendant's  line  of  railway  at  a  convenient  point 
within  the  town  of  Upper  Alton)  is  sufficiently  specific  to  be  enforced 
by  mandamus;  and  it  only  remains  to  be  seen  whether  the  right  to 


PEOPLE   V.   CHICAGO   AND   ALTON   RAILROAD.  229 

have  its  performance  enforced  is  shown  to  be  clear  and  undoubted. 
It  should  be  observed  that  there  is  no  controversy  as  to  the  facts ;  the 
allegations  of  the  petition  being,  for  all  the  purposes  of  this  appeal, 
conclusively  admitted  by  the  demurrer. 

The  petition  undertakes  to  show  the  public  importance  and  neces- 
sity of  the  station  asked  for  in  two  ways:  First,  by  alleging  the 
facts  and  circumstances  which  tend  to  prove  it;  and,  secondlij,  by 
directly  averring  it.  It  cannot  be  doubted,  we  think,  that  the  facts 
alleged  make  out  a  clear  and  strong  case  of  public  necessity'.  They 
show  that  Upper  Alton  is  a  town  of  over  1,800  inhabitants,  situated 
on  the  line  of  the  defendant's  railway  about  midway  between  two 
other  stations  seven  miles  apart.  The  residents  of  the  town  and 
vicinity  are  shown  to  be  possessed  of  at  least  the  ordinary  inclination 
to  travel  by  railway,  and  it  is  averred  that  many  of  them  have 
occasion  and  desire  to  travel  by  the  defendant's  railway  between 
Upper  Alton  and  other  points  on  the  line  of  said  railway.  Various 
manufacturing  and  other  business  enterprises  are  shown  to  be  carried 
on  within  the  town,  creating  a  necessity  for  the  use  of  said  railway 
for  the  transportation  of  manufactured  articles,  merchandise,  and  other 
freights.  To  avail  themselves  of  transportation  upon  trains  which 
pass  by  their  doors,  the  inhabitants  of  Upper  Alton  are  compelled  to 
go  and  transport  their  freights  by  other  conveyances  to  a  neighboring 
town  about  three  and  one-half  miles  away.  Then,  as  we  have  already 
said,  the  petition  directly  avers,  and  the  demurrer  admits,  that  the 
accommodation  of  the  public  living  in  and  near  said  town  requires, 
and  long  has  required,  the  establishment  of  a  passenger  and  freight 
depot  on  the  line  of  its  road  within  said  town.  Unless,  then,  there 
is  some  explanation  for  the  course  pursued  by  the  defendant  which 
the  record  does  not  give,  we  cannot  escape  the  conviction  that  its 
conduct  in  the  premises  exhibits  an  entire  want  of  good  faith  in  its 
efforts  to  perform  its  public  functions  as  a  common  carrier,  and  an 
unwarrantable  disregard  of  the  public  interests  and  necessities.  It 
cannot  be  admitted  that  the  discretion  vested  in  the  defendant  in  the 
matter  of  establishing  and  maintaining  its  freight  and  passenger  sta- 
tions extends  so  far  as  to  justify  such  manifest  and  admitted  disre- 
gard of  its  duties  to  the  public. 

We  are  of  the  opinion  that  the  petition  shows  a  clear  and  undoubted 
right  on  the  part  of  the  public  to  the  establishment  and  maintenance 
of  a  freight  and  passenger  station  on  the  line  of  the  defendant's  rail- 
way in  the  town  of  Upper  Alton,  and  it  therefore  follows  that  the 
demurrer  to  the  petition  should  have  been  overruled. 


230  MOBILE   &   OHIO   RAILROAD   V.   PEOPLE. 

MOBILE   &   OHIO   RAILROAD   v.    PEOPLE. 
Supreme  Court  of  Illinois,  1890. 

[132  ///.  559  :  24  N.  E.  643.] 

ScHOLFiELD,  J.^  Railway  stations  for  the  receipt  and  discharge  of 
passengers  and  freight  are  for  the  mutual  profit  and  convenience  of 
the  company  and  the  public.  Their  location  at  points  most  desirable 
for  the  convenience  of  travel  and  business  is  alike  indispensable  to 
the  efficient  operation  of  the  road  and  the  enjoyment  of  it  as  a  high- 
way by  the  public.  Necessarily,  therefore,  the  company  cannot  be 
compelled,  on  the  one  hand,  to  locate  stations  at  points  where  the 
cost  of  maintaining  them  will  exceed  the  profits  resulting  therefrom 
to  the  company,  nor  allowed,  on  the  other  hand,  to  locate  them  so  far 
apart  as  to  practically  deny  to  communities  on  the  line  of  the  road 
reasonable  access  to  its  use.  The  duty  to  maintain  or  continue  sta- 
tions must,  manifestly,  rest  upon  the  same  principle,  and  a  company 
cannot,  therefore,  be  compelled  to  maintain  or  continue  a  station  at  a 
point  where  the  welfare  of  the  company  and  the  country  in  general 
require  that  it  should  be  changed  to  some  other  point.  And  so  we 
have  held  that  a  railway  company  cannot  bind  itself  by  contract 
with  individuals  to  locate  and  maintain  stations  at  particular  points, 
or  to  not  locate  and  maintain  them  at  other  points.  Bestor  v. 
Wathen,  60  111.  138;  Linder  v.  Carpenter,  62  111.  309;  Marsh  v. 
Railroad  Co.,  64  111.  414;  Railroad  Co.  v.  INIathers,  71  111.  592;  Same 
Case  again  in  104  111.  257;  Snell  v.  Pells,  113  111.  145.  The  power 
of  election  in  the  location  of  the  line  of  the  railway  referred  to  in 
People  V.  Louisville  &  N.  R.  Co.,  120  111.  48,  results  from  the  fran- 
chise granted  by  the  charter  to  exercise  the  right  of  eminent  domain, 
and  is  therefore  totally  different  from  the  power  of  locating  stations, 
which,  from  its  very  nature,  is  a  continuing  one.  And  so  we  said  in 
Marsh  r.  Railroad  Co.,  svj^ra,  where  a  bill  had  been  filed  for  the  spe- 
cific performance  of  a  contract  to  locate  and  maintain  a  station  at  a 
particular  part:  "Railroad  companies,  in  order  to  fulfil  one  of  the 
ends  of  their  creation  —  the  promotion  of  the  public  welfare  — 
should  be  left  free  to  establish  and  re-establish  their  depots  whereso- 
ever the  accommodation  of  the  wants  of  the  public  may  require." 
And  so,  again,  we  said  in  Railroad  Co.  v.  Mathers,  siqn'a  :  "When- 
ever the  public  convenience  requires  that  a  station  on  a  railroad 
should  be  established  at  a  particular  point,  and  it  can  be  done  without 
detriment  to  the  interests  of  the  stockholders  of  the  company,  the 
law  authorizes  it  to  be  established  there,  and  no  contract  between  a 
board  of  directors  and  individuals  can  be  allowed  to  prohibit  it." 
And  in  the  very  recent  case  of  People  v.  Chicago  &  A.  R.  Co.,  130 
111.  175,  where  we  awarded  a  mandamus  commanding  the  location  and 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


NORTHERN    PACIFIC    RAILROAD   V.    WASHINGTON.  231 

maintaining  of  a  station  at  a  point  wiiere  no  station  had  before  been 
located  and  maintained,  we  said:  "It  is  undoubtedly  the  rule  that 
railway  companies,  in  the  absence  of  statutory  provisions  limiting 
and  restricting  their  powers  are  vested  with  a  very  broad  discretion 
in  the  matter  of  locating,  constructing,  and  operating  their  railways, 
and  of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  con- 
dition that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public." 

The  rule  has  been  so  often  announced  by  this  court  that  it  is 
unnecessary  to  cite  the  cases ;  that  a  mandamus  will  never  be  awarded 
unless  the  right  to  have  the  thing  done  which  is  sought  is  clearly 
established.  If  the  right  is  doubtful,  the  writ  will  be  refused.  The 
burden  was  on  the  relator  to  prove  a  case  authorizing  the  issuing  of 
tne  writ,  and  in  our  opinion  that  proof  has  not  been  made.  .  .  . 
The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  to  that  court  with  direction  to  enter  judgment  for  thf 
respondent. 


NORTHERN   PACIFIC   RAILROAD   v.    WASHINGTON. 
Supreme  Court  of  the  United  States,  1892. 

[142  U.  S.  492.] 

A  petition  in  the  name  of  the  Territory  of  Washington,  at  the  rela- 
tion of  the  prosecuting  attorney  for  the  county  of  Yakima  and  four 
other  counties  in  the  territory,  was  filed  in  the  District  Court  of  the 
fourth  judicial  district  of  the  territory  on  February  20,  188.5,  for  a 
mandamus  to  compel  the  Northern  Pacific  Railroad  Company  to 
erect  and  maintain  a  station  at  Yakima  City,  on  the  Cascade  branch 
of  its  railroad,  extending  from  Pasco  Junction,  on  the  Columbia 
River,  up  the  valley  of  the  Yakima  River  and  through  the  county  of 
Yakima,  towards  Puget  Sound,  and  to  stop  its  trains  there  to  receive 
and  deliver  freight,  and  to  receive  and  let  off  passengers.^ 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  Court. 

A  writ  of  mandam,us  to  compel  a  railroad  corporation  to  do  a  par- 
ticular act  in  constructing  its  road  or  buildings,  or  in  running  its 
trains,  can  be  issued  only  when  there  is  a  specific  legal  duty  on  its 
part  to  do  that  act,  and  clear  proof  of  a  breach  of  that  duty. 

If,  as  in  Railroad  v.  Hall,  91  U.  S.  343,  the  charter  of  a  railroad 
corporation  expressly  requires  it  to  maintain  its  railroad  as  a  contin- 
uous line,  it  may  be  compelled  to  do  so  by  mandamus.  So  if  the 
charter  requires  the  corporation  to  construct  its  road  and  to  run  its 
cars  to  a  certain  point  on  tide-water  (as  was  held  to  be  the  case  in 

1  "Part  of  the  statement  of  the  case  is  omitted.  —  Ed. 


232  NORTHEKN    PACIFIC   RAILROAD   V.   WASHINGTON. 

State  V.  Railroad,  29  Conn.  538),  and  it  has  so  constructed  its  road 
and  used  it  for  years,  it  may  be  compelled  to  continue  to  do  so. 
And  mandamus  will  lie  to  compel  a  corporation  to  build  a  bridge  in 
accordance  with  an  express  requirement  of  statute.  Railway  v.  Mis- 
sissippi, 112  U.  S.  12;  People  c.  Railroad,  70  N.  Y.  569. 

But  if  the  charter  of  a  railroad  corporation  simply  authorizes  the 
corporation,  without  requiring  it,  to  construct  and  maintain  a  railroad 
to  a  certain  point,  it  has  been  held  that  it  cannot  be  compelled  by 
Diandamus  to  complete  or  to  maintain  its  road  to  that  point  when  it 
would  not  be  remunerative.  Railway  Co.  v.  Queen,  1  El.  &  Bl. 
858;  Id.  874;  Com,  v.  Railroad,  12  Gray,  180;  States.  Railroad,  18 
Minn.  40. 

The  dilHculties  in  the  way  of  issuing  a  viandamiis  to  compel  the 
maintenance  of  a  i-ailroad  and  the  running  of  trains  to  a  terminus 
fixed  by  the  charter  itself  are  much  increased  when  it  is  sought  to 
compel  the  corporation  to  establish  or  to  maintain  a  station  and  to 
stop  its  trains  at  a  particular  place  on  the  line  of  its  road.  The  loca- 
tion of  stations  and  warehouses  for  receiving  and  delivering  passen- 
gers and  freight  involves  a  comprehensive  view  of  the  interests  of 
the  public,  as  well  as  of  the  corporation  and  its  stockholders,  and  a 
consideration  of  many  circumstances  concerning  the  amount  of  popu- 
lation and  business  at,  or  near,  or  within  convenient  access  to  one 
point  or  another,  which  are  more  appropriate  to  be  determined  by 
the  directors,  or,  in  case  of  abuse  of  their  discretion,  by  the  legis- 
lature, or  by  administrative  boards  intrusted  by  the  legislature  with 
that  duty,  than  by  the  ordinary  judicial  tribunals. 

The  defendant's  charter,  after  authorizing  and  empowering  it  to 
locate,  construct,  and  maintain  a  continuous  railroad  "  by  the  most 
eligible  route,  as  shall  be  determined  by  said  company,"  within  limits 
described  in  the  broadest  way,  both  as  to  the  terminal  points  and  as 
to  the  course  and  direction  of  the  road,  and  vesting  it  with  "all  the 
powers,  privileges,  and  immunities  necessary  to  carry  into  effect  the 
purposes  of  this  act  as  herein  set  forth,"  enacts  that  the  road  "shall  be 
constructed  in  a  substantial  and  workmanlike  manner,  with  all  the 
necessary  draws,  culverts,  bridges,  viaducts,  crossings,  turnouts, 
stations,  and  watering  places,  and  all  other  appurtenances."  The 
words  last  quoted  are  but  a  general  expression  of  what  would  be 
otherwise  implied  by  law,  and  cover  all  structures  of  every  kind 
needed  for  the  completion  and  maintenance  of  the  railroad.  They 
cannot  be  construed  as  imposing  any  specific  duty,  or  as  controlling 
the  discretion  in  these  respects  of  a  corporation  intrusted  with  such 
large  discretionary  powers  upon  the  more  important  questions  of  the 
course  and  the  termini  of  its  road.  The  contrast  between  these  gen- 
eral words  and  the  specific  requirements,  which  follow  in  the  same 
section,  that  the  rails  shall  be  manufactured  from  American  iron, 
and  that  "a  uniform  gauge  shall  be  established  throughout  the  entire 
length  of  the  road,"  is  significant. 


NORTHERN    PACIFIC    RAILROAD    V.    WASHINGTON.  233 

To  hold  that  the  directors  of  this  corporation,  in  determining  the 
number,  place,  and  size  of  its  stations  and  other  structures,  having 
regard  to  the  public  convenience  as  well  as  to  its  own  pecuniary 
interests,  can  be  controlled  by  the  courts  by  writ  of  mandamus,  would 
be  inconsistent  with  many  decisions  of  high  authority  in  analogous 
cases. 

The  constitution  of  Colorado,  of  1876,  art.  15,  §  4,  provided  that 
"all  railroads  shall  be  public  highways,  and  all  railroad  companies 
shall  be  common  carriers ;  "  and  that  "  every  railroad  company  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any  other 
railroad."  Section  6  of  the  same  article  was  as  follows:  "All  individ- 
uals, associations,  and  corporations  shall  have  equal  rights  to  have 
persons  and  property  transported  over  any  railroad  in  this  state,  and 
no  undue  or  unreasonable  discrimination  shall  be  made  in  charges  or 
facilities  for  transportation  of  freight  or  passengers  within  the  state, 
and  no  railroad  company,  nor  any  lessee,  manager,  or  employee 
thereof,  shall  give  any  preference  to  individuals,  associations,  or 
corporations  in  furnishing  car  or  motive  power."  The  General  Laws 
of  Colorado,  of  1877,  c.  19,  §  111,  authorized  every  railroad  company 
"to  cross,  intersect,  or  connect  its  railways  with  any  other  railway," 
"to  receive  and  convey  persons  and  property  on  its  railway,"  and  "to 
erect  and  maintain  all  necessary  and  convenient  buildings  and  sta- 
tions, fixtures  and  machinery,  for  the  convenience,  accommodation, 
and  use  of  passengers,  freights,  and  business  interests,  or  which  may 
be  necessary  for  the  construction  or  operation  of  said  railway." 
This  court  held  that  section  6  of  article  15  of  the  constitution  of 
Colorado  was  only  declaratory  of  the  common  law;  that  the  right 
secured  by  section  4  to  connect  railroads  was  confined  to  their  con- 
nection as  physical  structures,  and  did  not  imply  a  connection  of 
business  with  business;  and  that  neither  the  common  law,  nor  the 
constitution  and  statutes  of  Colorado,  compelled  one  railroad  corpora- 
tion to  establish  a  station  or  to  stop  its  cars  at  its  junction  with  the 
railroad  of  another  corporation,  although  it  had  established  a  union 
station  with  the  connecting  railroad  of  a  third  corporation,  and  had 
made  provisions  for  the  transaction  there  of  a  joint  business  with 
that  corporation.  Chief  Justice  Waite,  in  delivering  the  opinion, 
said:  "No  statute  requires  that  connected  roads  shall  adopt  joint 
stations,  or  that  one  railroad  company  shall  stop  at  or  make  use  of 
the  station  of  another.  Each  company  in  the  state  has  the  legal 
right  to  locate  its  own  stations,  and,  so  far  as  statutory  regulations 
are  concerned,  is  not  required  to  use  any  other.  A  railroad  company 
is' prohibited,  both  by  the  common  law  and  by  the  constitution  of 
Colorado,  from  discriminating  unreasonably  in  favor  of  or  against 
another  company  seeking  to  do  business  on  its  road;  but  that  does 
not  necessarily  imply  that  it  must  stop  at  the  junction  of  one  and 
interchange  business  there  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  connecting  busi- 


234  NORTHERN    PACIFIC    RAILliOAD    V.    WASHINGTON. 

ness  with  another  company  at  another  place.  A  station  may  be 
established  for  the  special  accommodation  of  a  particular  customer; 
but  we  have  never  heard  it  claimed  that  every  other  customer  could, 
b}'  a  suit  in  equit}^,  in  the  absence  of  a  statutory  or  contract  right, 
compel  the  company  to  establish  a  like  station  for  his  special  accom- 
modation at  some  other  place.  Such  matters  are,  and  always  have 
been,  proper  subjects  for  legislative  consideration,  unless  prevented 
by  some  charter  contract;  but,  as  a  general  rule,  remedies  for  in- 
justice of  that  kind  can  only  be  obtained  from  the  legislature.  A 
court  of  chancery  is  not,  any  more  than  is  a  court  of  law,  clothed 
with  legislative  power."  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  & 
N.  O.  R.  Co.,  110  U.  S.  667,  681,  682. 

The  Court  of  Appeals  of  New  York,  in  a  very  recent  case,  refused 
to  grant  a  mamlamus  to  compel  a  railroad  corporation  to  construct 
and  maintain  a  station  and  warehouse  of  sufficient  capacity  to  accom- 
modate passengers  and  freight  at  a  village  containing  1,200  inhabi- 
tants, and  furnishing  to  the  defendant  at  its  station  therein  a  large 
freight  and  passenger  business,  although  it  was  admitted  that  its 
present  building  at  that  place  was  entirely  inadequate;  that  the 
absence  of  a  suitable  one  was  a  matter  of  serious  damage  to  large 
numbers  of  persons  doing  business  at  that  station ;  that  the  railroad 
commissioners  of  the  state,  after  notice  to  the  defendant,  had  adjudged 
and  recommended  that  it  should  construct  a  suitable  bui'ding  there 
within  a  certain  time;  and  that  the  defendant  had  failed  to  take  any 
steps  in  that  direction,  not  for  want  of  means  or  ability,  but  because 
its  directors  had  decided  that  its  interests  required  it  to  postpone 
doing  so.  The  court,  speaking  by  Judge  Danforth,  while  recogniz- 
ing that  "  a  plainer  case  could  hardly  be  presented  of  a  deliberate 
and  intentional  disregard  of  the  public  interest  and  the  accommoda- 
tion of  the  public,"  yet  held  that  it  was  powerless  to  interpose,  be- 
cause the  defendant,  as  a  carrier,  was  under  no  obligation,  at  common 
law,  to  provide  warehouses  for  freight  offered,  or  station-houses  for 
passengers  waiting  transportation,  and  no  such  duty  was  imposed 
by  the  statutes  authorizing  companies  to  construct  and  maintain 
railroads  "for  public  use  in  the  conveyance  of  persons  and  property," 
and  to  erect  and  maintain  all  necessary  and  convenient  buildings 
and  stations  "for  the  accommodation  and  use  of  their  passengers, 
freight,  and  business,"  and  because,  under  the  statutes  of  New  York, 
the  proceedings  and  determinations  of  the  railroad  commissioners 
amounted  to  nothing  more  than  an  inquest  for  information,  and  had 
no  effect  beyond  advice  to  the  railroad  compan}^  and  suggestion  to 
the  legislature,  and  could  not  be  judicially  enforced.  The  court 
said:  "  As  the  duty  sought  to  be  imposed  upon  the  defendant  is  not 
a  specific  duty  prescribed  by  statute,  either  in  terms  or  by  reasonable 
construction,  the  court  cannot,  no  matter  how  apparent  the  necessity, 
enforce  its  performance  by  mandamva.  It  cannot  compel  the  erection 
of  a  station-house,  nor  the  enlargement  of  one."     "As  to  that,  the 


NORTHERN    PACIFIC    RAILROAD    V.    WASHINGTON.  235 

statute  imports  an  authority  only,  not  a  command,  to  be  availed  of 
at  the  option  of  the  company  iu  the  discretion  of  its  directors,  who 
are  empowered  by  statute  to  manage  '  its  affairs,'  among  which  must 
be  classed  the  expenditure  of  money  for  station  buildings  or  other 
structures  for  the  promotion  of  the  convenience  of  the  public,  having 
regard  also  to  its  own  interest.  With  the  exercise  of  that  discretion 
the  legislature  only  can  interfere.  No  doubt,  as  the  respondent 
urges,  the  court  may  by  ■nia7idamus  also  act  in  certain  cases  affecting 
corporate  matters,  but  only  where  the  duty  concerned  is  specific  and 
plainly  imposed  upon  the  corporation."  "Such  is  not  the  case  before 
us.  The  grievance  complained  of  is  an  obvious  one,  but  the  burden 
of  removing  it  can  be  imposed  upon  the  defendant  only  by  legisla- 
tion. The  legislature  created  the  corporation  upon  the  theory  that 
its  functions  should  be  exercised  for  the  public  benefit.  It  may  add 
other  regulations  to  those  now  binding  it,  but  the  court  can  interfere 
only  to  enforce  a  duty  declared  by  law.  The  one  presented  in  this 
case  is  not  of  that  character;  nor  can  it  by  any  fair  or  reasonable 
construction  be  implied."    People  y.  Railroad,  104  N.  Y.  58,  Q6,  67. 

In  Com.  V.  Railroad,  the  Supreme  Judicial  Court  of  Massachusetts, 
in  holding  that  a  railroad  corporation,  whose  charter  was  subject 
to  amendment,  alteration,  or  repeal  at  the  pleasure  of  the  legislature, 
might  be  required  by  a  subsequent  statute  to  construct  a  station  and 
stop  its  trains  at  a  particular  place  on  its  road,  said:  "If  the  direc- 
tors of  a  railroad  were  to  find  it  for  the  interest  of  the  stockholders 
to  refuse  to  carry  any  freight  or  passengers  except  such  as  they  might 
take  at  one  end  of  the  road  and  carry  entirely  through  to  the  other 
end,  and  were  to  refuse  to  establish  any  way  stations,  or  do  any  way 
business  for  that  reason,  though  the  road  passed  for  a  long  distance 
through  a  populous  part  of  the  state,  this  would  be  a  case  manifestly 
requiring  and  authorizing  legislative  interference  under  the  clause 
in  question;  and  on  the  same  ground,  if  they  refuse  to  provide  rea- 
sonable accommodation  for  the  people  of  any  smaller  locality,  the 
legislature  may  reasonably  alter  and  modify  the  discretionary  power 
which  the  charter  confers  upon  the  directors,  so  as  to  make  the  duty 
to  provide  the  accommodation  absolute.  Whether  a  reasonable 
ground  for  interference  is  presented  in  any  particular  case  is  for  the 
legislature  to  determine,  and  their  determination  on  this  point  must 
be  conclusive."     103  Mass.  254,  258. 

Upon  the  same  principle,  the  Supreme  Judicial  Court  of  Maine 
compelled  a  railroad  corporation  to  build  a  station  at  a  specified 
place  on  its  road  in  accordance  with  an  order  of  railroad  commis- 
sioners, expressly  empowered  by  the  statutes  of  the  state  to  make 
such  an  order,  and  to  apply  to  the  court  to  enforce  it.  Laws  Me. 
1871,  c.   204;  Commissioners  v.  Portland  &  O.  R.  Co.,  63  Me.  270. 

In  Railway  Co.  v.  Commissioners,  a  railway  company  was  held  by 
Lord  Chancellor  Selborne,  Lord  Chief  Justice  Coleridge,  and  Lord 
Justice  Brett,  iu  the  English  Court  of  Appeal,  to  be  under  no  obliga 


236  NORTHERN    PACIFIC    RAILROAD    V.    WASHINGTON. 

tion  to  establish  stations  at  any  particular  place  or  places  unless  it 
thought  fit  to  do  so,  and  was  held  bound  to  afford  improved  facilities 
for  receiving,  forwarding,  and  delivering  passengers  and  goods  at  a 
station  once  established  and  used  for  the  purpose  of  traffic  only  so 
far  as  it  had  been  ordered  to  afford  them  by  the  railway  commis- 
sioners, within  powers  expressly  conferred  by  Act  of  Parliament. 
6  Q.  B.  Div.  586,  592. 

The  decision  in  State  v.  Railroad  Co.,  17  Neb.  647,  cited  in  the 
opinion  below,  proceeded  upon  the  theory  (inconsistent  with  the 
judgments  of  this  court  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  & 
N.  O.  R.  Co.,  and  of  the  Court  of  Appeals  of  New  York  in  People  c. 
Railroad  Co.,  above  stated)  that,  independently  of  any  statute  re- 
quirements, a  railroad  corporation  might  be  compelled  to  establish  a 
station  and  to  stop  its  trains  at  any  point  on  the  line  of  its  i-oad  at 
which  the  court  thought  it  reasonable  that  it  should. 

The  opinions  of  the  Supreme  Court  of  Illinois,  though  going  fur- 
ther than  those  of  most  other  courts  in  favor  of  issuing  writs  of 
mandamus  to  railroad  corporations,  afford  no  countenance  for  grant- 
ing the  writ  in  the  case  at  bar.  In  People  v.  Railroad  Co.,  120  111. 
48,  a  mandamus  was  issued  to  compel  the  company  to  run  all  its 
passenger  trains  to  a  station  which  it  had  once  located  and  used  in 
a  town  made  a  terminal  point  by  the  charter,  and  which  was  a  county 
seat,  because  the  corporation  had  no  legal  power  to  change  its  loca- 
tion, and  was  required  by  statute  to  stop  all  trains  at  a  county  seat. 
In  People  v.  Railroad  Co.,  130  111.  175,  in  which  a  mandamus  was 
granted  to  compel  a  railroad  company  to  establish  and  maintain  a 
station  in  a  certain  town,  the  petition  for  the  writ  alleged  specific 
facts  making  out  a  clear  and  strong  case  of  public  necessity,  and 
also  alleged  that  the  accommodation  of  the  public  living  in  or  near 
the  town  required,  and  long  had  required,  the  establishment  of  a 
station  on  the  line  of  the  road  within  the  town;  and  the  decision  was 
that  a  demurrer  to  the  petition  admitted  both  the  specific  and  the 
general  allegations,  and  must  therefore  be  overruled.  The  court,  at 
pages  182,  183,  of  that  case,  and  again  in  Railroad  Co.  v.  People, 
132  III.  559,  571,  said:  "It  is  undoubtedly  the  rule  that  railway  com 
panics,  in  the  absence  of  statutory  provisions  limiting  and  restrict- 
ing their  powers,  are  vested  with  a  very  broad  discretion  in  the 
matter  of  locating,  constructing,  and  operating  their  railways,  and 
of  locating  and  maintaining  their  freight  and  passenger  stations. 
This  discretion,  however,  is  not  absolute,  but  is  subject  to  the  condi- 
tion that  it  must  be  exercised  in  good  faith,  and  with  a  due  regard 
to  the  necessities  and  convenience  of  the  public."  But  in  the  latter 
case  the  court  also  said:  "The  company  cannot  be  compelled,  on  the 
one  hand,  to  locate  stations  at  points  where  the  cost  of  maintaining 
them  will  exceed  the  profits  resulting  therefrom  to  the  company',  nor 
allowed,  on  the  other  hand,  to  locate  them  so  far  apart  as  to  practi- 
cally deny  to  communities  on  the  line  of  the  road  reasonable  access  to 


NORTHERN   PACIFIC   RAILROAD   V.   WASHINGTON.  237 

its  use.  The  duty  to  maintain  or  continue  stations  must  manifestly 
rest  upon  the  same  principle,  and  a  company  cannot,  therefore,  be 
compelled  to  maintain  or  continue  a  station  at  a  point  when  the 
•welfare  of  the  company  and  the  community  in  general  requires  that 
it  should  be  changed  to  some  other  point."  Page  570.  "The  rule 
has  been  so  often  announced  by  this  court  that  it  is  unnecessary  to 
cite  the  cases,  that  a  mandamus  will  never  be  awarded  unless  the 
right  to  have  the  thing  done  which  is  sought  is  clearly  established." 
Page  572.     And  upon  these  reasons  the  writ  was  refused. 

Section  691  of  the  Code  of  Washington  Territory  of  1881,  follow- 
ing the  common  law,  defines  the  cases  in  which  a  writ  of  mandamus 
may  issue  as  "to  any  inferior  court,  corporation,  board,  officer,  or 
person  to  compel  the  performance  of  an  act  which  the  law  specially 
enjoins  as  a  duty  resulting  from  an  office,  trust,  or  station."  By  the 
same  code,  in  viaridamus,  as  in  civil  actions,  issues  of  fact  may  be 
tried  by  a  jury;  the  verdict  may  be  either  general  or  special,  and,  if 
special,  may  be  in  answer  to  questions  submitted  by  the  court;  and 
material  allegations  of  the  plaintiff  not  denied  by  the  answer,  as  well 
as  material  allegations  of  new  matter  in  the  answer  not  denied  in  the 
replication,  are  deemed  admitted,  but  a  qualified  admission  cannot  be 
availed  of  by  the  other  party,  except  as  qualified.  Sections  103, 
240,  242,  694,  696;  Breemer  v.  Burgess,  2  Wash.  T.  290,  296;  Gil- 
dersleeve  v,  Landon,  73  N.  Y.  609.  The  replication  filed  in  this  case, 
not  being  copied  in  the  record  sent  up,  may  be  assumed,  as  most 
favorable  to  the  defendant  in  error,  to  have  denied  all  allegations  of 
new  matter  in  the  answer. 

The  leading  facts  of  this  case,  then,  as  appearing  by  the  special 
verdict,  taken  in  connection  with  the  admissions,  express  or  implied, 
in  the  answer,  are  as  follows:  The  defendant  at  one  time  stopped  its 
trains  at  Yakima  City,  but  never  built  a  station  there,  and,  after  com- 
pleting its  road  four  miles  further,  to  North  Yakima,  established  a 
freight  and  passenger  station  at  North  Yakima,  which  was  a  town  laid 
out  by  the  defendant  on  its  own  unimproved  land,  and  thereupon 
ceased  to  stop  its  trains  at  Yakima  City.  In  consequence,  appar- 
ently, of  this,  Yakima  City,  which  at  the  time  of  filing  the  petition 
for  mandamus  was  the  most  important  town,  in  population  and  busi- 
ness, in  the  county,  rapidly  dwindled,  and  most  of  its  inhabitants 
removed  to  North  Yakima,  which  at  the  time  of  the  verdict  had  be- 
come the  largest  and  most  important  town  in  the  county.  No  other 
specific  facts  as  to  North  Yakima  are  admitted  by  the  parties  or 
found  by  the  jury.  The  defendant  could  build  a  station  at  Yakima 
City,  but  the  cost  of  building  one  would  be  S8,000,  and  the  expense 
of  maintaining  it  $150  a  month,  and  the  earnings  of  the  whole  of 
this  division  of  the  defendant's  road  are  insufficient  to  pay  its  run- 
ning expenses.  The  special  verdict  includes  an  express  finding  (which 
appears  to  us  to  be  of  pure  matter  of  fact,  inferred  from  various  cir- 
cumstances, some  of  which  are  evidently'  not  specifically  found,  and 


238  NORTHERN    PACIFIC   RAILROAD   V.   WASHINGTON. 

to  be  iu  no  sense,  as  assumed  by  the  court  below,  a  conclusion  of 
law)  that  there  are  other  stations  for  receiving  freight  and  pat-sengers 
between  North  Yakima  and  Pasco  Junction,  which  furnish  surticient 
facilities  for  the  country  south  of  North  Yakima,  which  must  include 
Y'akima  City,  as  well  as  an  equally  explicit  finding  (which  appears 
to  have  been  who'ly  disregarded  by  the  court  below)  that  the  passen- 
ger and  freight  traffic  of  the  people  living  in  the  surrounding  country, 
considering  them  as  a  community,  would  be  better  accommodated  by 
a  station  at  North  Yakima  than  by  one  at  Yakima  City.  It  also 
appears  of  record  that,  after  the  verdict  and  before  the  district  court 
awajTled  the  writ  of  mandamus,  the  county  seat  was  removed,  pur- 
suant to  an  act  of  the  territorial  legislature,  from  Y''akima  City  to 
North  Yakima. 

The  mandamus  prayed  for  being  founded  on  a  suggestion  that  the 
defendant  had  distinctly  manifested  an  intention  not  to  perform  a 
definite  duty  to  the  public,  required  of  it  by  law,  the  petition  was 
rightly  presented  iu  the  name  of  the  territory  at  the  relation  of  its 
prosecuting  attorney  (Attorney-General  v.  Boston,  123  Mass.  460, 
479;  Code  Wash.  T.  §  2171);  and  no  demand  upon  the  defendant 
was  necessary  before  applying  for  the  writ,  (Com.  v.  Commissioners, 
87  Pa.  St.  237;  State  v.  Board,  38  N.  J.  Law,  259;  Mottu  v.  Prim- 
rose, 23  Md.  482;  Attorney-General  v.  Boston,  123  Mass.  460,  477). 

But  upon  the  facts  found  and  admitted  no  sufficient  case  is  made 
for  a  writ  of  mandamus^  even  if  the  court  could,  under  any  circum- 
stances, issue  such  a  writ  for  the  purpose  set  forth  in  the  petition. 
The  fraudulent  and  wrongful  intent  charged  against  the  defendant  in 
the  petition  is  denied  in  the  answer,  and  is  not  found  by  the  jury. 
The  fact  that  the  town  of  North  Y''akima  was  laid  out  by  the  defend- 
ant on  its  own  land  cannot  impair  the  right  of  the  inhabitants  of  that 
town,  whenever  they  settled  there,  or  of  the  people  of  the  surrounding 
country,  to  reasonable  access  to  the  railroad.     No  ground  is  shown 
for   requiring  the   defendant  to  maintain   stations    both  at  Yakima 
City  and  at  North  Yakima;  there  are  other  stations  furnishing  suffi- 
cient facilities  for  the  whole  country  from  North  Yakima  southward 
to  Pasco  Junction;  the  earnings  of  the  division  of  the  defendant's 
road  between  those  points  are  insufficient  to  pay  its  running  expenses; 
and  to  order  the  station  to  be  removed  from  North  Yakima  to  Yakima 
City  would  inconvenience  a  much  larger  part  of  the  public  than  it 
would  benefit,  even  at  the  time  of  the  return  of   the  verdict;    and, 
before   judgment   in  the  district  court,  the   legislature,  recognizing 
that  the  public  interest  required  it,  made  North  Yakima  the  county 
seat.     The  question  whether  a  mandamus  should  issue  to  protect  the 
interest  of  the  public  does  not  depend  upon  a  state  of  facts  existing 
when  the  petition  was  filed,  if  that  state  of  facts  has  ceased  to  exist 
when  the  iinal  judgment  is  rendered.     In  this  regard,  as  observed  by 
Lord  Chief  Justice  Jervis  in  Railway  Co.   v.  Queen,  already  cited, 
"there   is  a  very  great  difference  between   an    indictment  .for   not 


CONCORD,    ETC.    KAILKOAD    V.   BOSTON    AND    MAINE    RAILROAD.      239 

fulfilliug  a  public  duty,  and  a  mandamus  commanding  the  party 
liable  to  fulfil  it."  1  El.  &  Bl.  878.  The  court  will  never  order  a 
railroad  station  to  be  built  or  maintained  contrary  to  the  public  in- 
terest.    T.  &  P.  Railway  v.  Marshall,  13G  U.  S.  3U3. 

For  the  reasons  above  stated,  the  judgment  of  the  Supreme  Court 
of  the  territory  must  be  reversed,  and  the  case  remanded,  with  direc- 
tions to  enter  judgment  for  the  defendant,  dismissing  the  petition; 
and,  Washington  having  been  admitted  into  the  Union  as  a  state  by 
Act  of  Congress  passed  while  this  writ  of  error  was  pending  in  this 
court,  the  mandate  will  be  directed  as  the  nature  of  the  case  requires, 
to  the  Supreme  Court  of  the  state  of  Washington.  Act  Feb.  '22,  1889, 
c.  180,  .§§  22,  23  (25  St.  682,  683). 

Judgment  reversed,  and  mandate  accordingly. 

Mr.  Justice  Brewer  (with  whom  concurred  Mr.  Justice  Field  and 
JMr.  Justice    Harlan),  dissenting. 


CONCORD  AND  MONTREAL  RAILROAD  v.  BOSTON  AND 
MAINE  RAILROAD. 

Supreme  Court  of  New  Hampshire,  1893. 
[67  N.  H.  465.] 

Petition,  for  the  location  of  a  union  station  at  Manchester.  All  the 
parties  desire  the  erection  of  such  a  station,  which,  it  is  conceded,  the 
public  good  requires ;  but  they  are  unable  to  agree  upon  a  location, 
Tlie  defendants  claim  that  the  court  has  no  jurisdiction. 

Per  Curiam.  The  legislature  has  not  authorized  the  railroad  com- 
missioners to  locate  railroad  stations  (P.  S.,  c.  155,  §§  11-23,  c.  159, 
§§  21,  22),  and  no  other  tribunal  is  directly  invested  with  that  power. 
It  is  conceded  that  the  [jublic  good  requires  that  there  should  be  a 
union  passenger  station  in  the  city  of  Manchester,  to  be  used  by  the 
railroads  connecting  at  that  point,  for  the  accommodation  of  the  public 
as  well  as  for  their  own  convenience  and  advantage.  From  this  con- 
cession it  necessarily  follows  that  it  is  the  legal  duty  of  the  parties  to 
locate,  erect,  and  maintain  such  a  depot  as  public  necessity  requires. 
The  fact  that  they  are  unable  to  agree  upon  a  suitable  location  does 
not  relieve  them  from  that  duty  ;  and  the  question  is,  whetlier  this 
obligation  is  an  unenforceable  one  in  the  absence  of  express  legislation 
upon  the  subject,  or  whether  the  right,  which  each  has  in  the  perform- 
ance of  its  public  function,  to  locate  a  union  station  at  a  reasonably 
convenient  point  cannot  be  vindicated  and  enforced  by  the  orders  and 
decrees  of  this  court. 

The  right  of  these  parties  and  the  public  to  have  the  union  sta- 


240       JONES   V.   NEWPORT   NEWS   AND   MISSISSIPPI   VALLEY   CO. 

tion  at  Manchester  located  in  the  proper  place  is  a  legal  right,  the 
enforcement  of  which  is  not  prevented  by  the  circumstance  that  the 
remedial  power  is  not  conferred  upon  a  triljunal  of  special  and  limited 
jurisdiction.  It  is  a  right  which  can  be  judiciall}-  determined  at  the 
trial  term  upon  a  petition  or  bill  in  equit}'  seeking  such  relief.  The 
procedure  will  be  such  as  is  considered  most  appropriate  for  the  work 
to  be  done.    Walker  v.  Walker,  63  N.  H.  321. 

Case  discharged.^ 


JONES   V.    NEWPORT   NEWS   &   MISSISSIPPI  VALLEY  CO. 
Circuit  Court  of  Appeals,  Sixth  Circuit,  1895. 

[65  Fed.  736.2] 

Action  by  H.  M.  Jones  against  the  Newport  News  &  Mississippi 
Valley  Company  for  injury  to  and  discontinuance  of  a  railroad  switch 
to  plaintiff's  warehouse.  A  demurrer  was  sustained  to  that  part  of 
the  petition  which  claimed  damages  for  discontinuance  of  the  switch, 
and  plaintiff  brings  error. 

Taft,  Circuit  Judge.  Plaintiff  bases  his  claim  for  damages  — 
First,  on  the  violation  of  an  alleged  common-law  duty;  and,  second, 
on  the  breach  of  a  contract. 

1.  The  proposition  put  forward  on  plaintiff's  behalf  is  that  when  a 
railroad  company  permits  a  switch  connection  to  be  made  between 
its  line  and  the  private  warehouse  of  any  person,  and  delivers  mer- 
chandise over  it  for  years,  it  becomes  part  of  the  main  line  of  the 
railroad,  and  cannot  be  discontinued  or  removed,  and  this  on 
common-law  principles  and  without  the  aid  of  a  statute.  It  may  be 
safely  assumed  that  the  common  law  imposes  no  greater  obligation 
upon  a  common  carrier  with  respect  to  a  private  individual  than  with 
respect  to  the  public.  If  a  railroad  company  may  exercise  its  dis- 
cretion to  discontinue  a  public  station  for  passengers  or  a  public  ware- 
house for  freight  without  incurring  any  liability  or  rendering  itself 
subject  to  judicial  control,  it  would  seem  necessarily  to  follow  that 
it  may  exercise  its  discretion  to  establish  or  discontinue  a  private 
warehouse  for  one  customer. 

In  Northern  Pac.  Ry.  Co.  v.  Washington,  142  U.  S.  492,  it  was 
held  that  a  mandamus  would  not  lie  to  compel  a  railroad  company  to 
establish  a  station  and  stop  its  trains  at  a  town  at  which  for  a  time 
it  did  stop  its  trains  and  deliver  its  freight. 

In  Com.  V.  Fitchburg  R.  Co.,  12  Gray,  180,  it  was  attempted  to 
compel  a  railroad  company  to  run  regular  passenger  trains  over  cer- 

1  Compare:  R.  R.  v.  Commissionera,  6  Q.  B.  D.  .586;  P.  v.  R.  R.,  120  111.48; 
Commissioners  i:  R.  R.,  63  Me.  273  ;  V.  v.  R.  R.,  104  N.  Y.  58.  — Ed. 

2  This  case  is  abridged.  —  Ed. 


JONES   V.   NEWPORT    NEWS    &   MISSISSIPPI    VALLEY   CO.  241 

tain  branch  lines  upon  whicli  tliey  bad  been  run  for  a  long  time,  but 
had  been  discontinued  because  they  were  unremunerative.  The  court 
held  that  mandamus  would  not  lie  because  the  maintenance  of  such 
facilities  was  left  to  the  discretion  of  the  directors.^ 

It  is  true  that  the  foregoing  were  cases  of  mandamus^  and  that  the 
court  exercises  a  discretion  in  the  issuance  of  that  writ  which  cannot 
enter  into  its  judgment  in  an  action  for  damages  for  a  breach  of  duty. 
But  the  cases  show  that  the  reason  why  the  writ  cannot  go  is  because 
there  is  no  legal  right  of  the  public  at  common  law  to  have  a  station 
established  at  any  particular  place  along  the  line,  or  to  object  to  a 
discontinuance  of  a  station  after  its  establishment.  They  make  it 
clear  that  the  directors  have  a  discretion  in  the  interest  of  the  public 
and  the  company  to  decide  where  stations  shall  be,  and  where  they 
shall  remain,  and  that  this  discretion  cannot  be  controlled  in  the 
absence  of  statutory  provision.  Such  uncontrollable  discretion  is 
utterly  inconsistent  with  the  existence  of  a  legal  duty  to  maintain  a 
station  at  a  particular  place,  a  breach  of  which  can  give  an  action  for 
damages.  If  the  directors  have  a  discretion  to  establish  and  discon- 
tinue public  stations,  a  fortiori  have  they  the  right  to  discontinue 
switch  connections  to  private  warehouses.  The  switch  connection 
and  transportation  over  it  may  seriously  interfere  with  the  conven- 
ience and  safety  of  the  public  in  its  use  of  the  road.  It  may  much 
embarrass  the  general  business  of  the  company.  It  is  peculiarly 
within  the  discretion  of  the  directors  to  determine  whether  it  does  so 
or  not.  At  one  time  in  the  life  of  the  company,  it  may  be  useful  and 
consistent  with  all  the  legitimate  purposes  of  the  company.  A 
change  of  conditions,  an  increase  in  business,  a  necessity  for  travel 
at  higher  speed,  may  make  such  a  connection  either  inconvenient  oi 
dangerous,  or  both.  We  must  therefore  dissent  altogether  from  the 
proposition  that  the  establishment  and  maintenance  of  a  switch  con- 
nection of  the  main  line  to  a  private  warehouse  for  any  length  of  time 
can  create  a  duty  of  the  railroad  company  at  common  law  forever  to 
maintain  it.     There  is  little  or  no  authority  to  sustain  it. 

The  latest  of  the  Illinois  cases  which  are  relied  upon  is  based  upon 
a  constitutional  provision  which  requires  all  railroad  companies 
to  permit  connections  to  be  made  with  their  track,  so  that  the  con- 
signee of  grain  and  any  public  warehouse,  coal  bank,  or  coal  yard 
may  be  reached  by  the  cars  of  said  railroad.  The  supreme  court  of 
that  state  has  held  that  the  railroad  company  has  a  discretion  to  say 
in  what  particular  manner  the  connection  shall  be  made  with  its  main 
track,  but  that  this  discretion  is  exhausted  after  the  completion  of  the 
switch  and  its  use  without  objection  for  a  number  of  ypars.  Railroad 
Co.  V.  Snffern,  129  111.  274,  But  this  is  very  far  from  holding  that 
there  is  any  common-law  liability  to  maintain  a  side  track  forever 

1  An  extract  from  the  opinion  in  TJv  >•.  Wasliinijton  is  omitted.  The  Court  also 
cited  Peo.  v.  N.  Y.  L.  E.  &  W.  R.  R.,  104  N.  Y.  58  ;  Florida,  C.  &  P.  R.  R.  v.  State, 
31  Fla.  4S2.  —  Ed. 

16 


242         JONES   V.    NEWPOKT   NEWS    &   xMISSISSIPPI    VALLEY    CO. 

after  it  has  once  been  established.  The  other  Illinois  cases  (Vincent 
V.  Railroad  Co.,  49  111.  33;  Chicago  &  N.  W.  Ry.  Co.  v.  People,  56  111. 
365)  may  be  distinguished  in  the  same  way.  They  depended  on  stat- 
utory obligations,  and  were  not  based  upon  the  common  law,  though 
there  are  some  remarks  in  the  nature  of  obiter  dicta  which  gives  color 
to  plaintiff's  contention.  But  it  will  be  seen  by  reference  to  Mr. 
Justice  Gkay's  opinion,  already  quoted  from,  that  the  Illinois  cases 
have  exercised  greater  power  than  most  courts  in  controlling  the 
discretion  of  railroads  in  the  conduct  of  their  business. 

In  Barre  R.  Co.  v.  Montpelier  &  W.  R.  Co.,  31  Vt.  1,  the  question 
was  one  of  condemnation.  The  law  forbade  one  railroad  company  to 
condemn  the  line  of  another  road,  and  the  question  was  whether  the 
side  tracks  of  the  railroad  company,  which,  with  the  consent  of  the 
owners  of  the  granite  quarry,  ]-an  into  a  quarry  in  which  a  great  busi- 
ness was  done,  were  the  line  of  the  railroad  within  the  meaning  of  the 
statute.  It  was  held  that  they  w^ere  so  far  as  to  impose  obligations 
on  and  create  exemptions  in  favor  of  the  railroad  company  operating 
the  side  tracks.  We  may  concede,  for  the  purpose  of  this  case, 
without  deciding,  that,  as  long  as  a  railroad  company  permits  a  side 
track  to  be  connected  with  its  main  line  for  the  purpose  of  delivering 
merchandise  in  car-load  lots  to  the  owner  of  the  side  track,  the  obli- 
gation of  the  railroad  company  is  the  same  as  if  it  were  delivering 
these  cars  at  its  own  warehouse,  on  its  own  side  track.  But  this  we 
do  not  conceive  to  be  inconsistent  with  the  right  of  the  directors  of 
the  railroad  company,  exercising  their  discretion  in  the  conduct  of 
the  business  of  the  company  for  the  benefit  of  the  public  and  the 
shareholders,  to  remove  a  side- track  connection. 

The  recital  of  the  facts  in  the  petition  in  this  case  is  enough  to  show 
that  the  switch  connection  of  the  plaintiff"  was  one  of  probable  or 
possible  danger  to  the  public  using  the  railroad,  and  to  justify  its 
termination  for  that  reason.  It  was  made  on  a  high  fill,  on  the 
approacli  to  a  bridge  across  a  stream,  and  the  switch  track  ran  on  to 
a  trestle  15  feet  above  the  ground,  and  terminating  in  the  air.  Even 
if  the  discretion  reposed  in  the  directors  to  determine  where  switch 
connections  shall  be  made  or  removed  were  one  for  the  abuse  of  which 
an  action  for  damages  would  lie,  the  petition  would  be  defective,  be- 
cause it  does  not  attempt  in  any  way  to  negative  the  dangerous  char- 
acter of  the  switch  which  the  facts  stated  certainly  suggest  as  a  good 
ground  for  the  action  of  the  company  complained  of.   .   .   . 

The  judgment  of  the  circuit  court  is  affirmed,  with  costs. 


CHICAGO   AND    NORTHWESTERN   RAILROAD    V.   PEOPLE.  243 

CHICAGO    AND    NORTHWESTERN    RAILROAD   v.   PEOPLE. 
Supreme  Court  of  Illinois,  1870. 

[56  III  365.] 

Mr.  Chief  Justice  Lawrence  delivered  the  opinion  of  tlie  Court : 
Tliis  was  an  application  for  a  mandamus,  on  the  relation  of  the 
owners  of  the  Illinois  River  elevator,  a  grain  warehouse  in  the  city  of 
Cliicago,  against  the  Chicago  and  Northwestern  Raih'oad  Company, 
The  relators  seek  by  the  writ  to  compel  the  railway  company  to  ileliver 
to  said  elevator  whatever  grain  in  bulk  ma\'  be  consigned  to  it  upon 
the  line  of  its  road.  There  was  a  return  duly  made  to  the  alternative 
writ,  a  demurrer  to  the  return,  and  a  judgment  pro  forma  upon  the 
demurrer,  directing  tlie  issuing  of  a  peremptory  writ.  From  that  judg- 
ment the  railwa}-  company'  has  prosecuted  an  appeal. 

The  facts  as  presented  by  the  record  are  briefly-  as  follows  : 
The  compan}'  has  freight  and  passenger  depots  on  the  west  side  of 
the  north  branch  of  the  Chicago  River,  north  of  Kinzie  Street,  for  the 
use,  as  we  understand  the  record  and  tlie  maps  which  are  made  a  part 
thereof,  of  the  divisions  known  as  the  Wisconsin  and  Milwaukie  divi- 
sions of  the  road,  running  in  a  northwesterly  direction.  It  also  has 
depots  on  the  east  side  of  the  north  branch,  for  the  use  of  the  Galena 
division,  running  westerl}-.  It  has  also  a  depot  on  the  south  branch 
near  Sixteenth  Street,  which  it  reaches  b}'  a  track  diverging  from  the 
Galena  line  on  the  west  side  of  the  cit}'.  The  map  indicates  a  line 
running  north  from  Sixteenth  Street  the  entire  length  of  West  Water 
Street,  but  we  do  not  understand  the  relators  to  claim  their  elevator 
should  be  approached  Ijy  this  line,  as  the  respondent  has  no  interest  in 
this  line  south  of  Van  Buren  Street. 

Under  an  ordinance  of  the  citj',  passed  August  10,  1858,  the  Pitts- 
burgh, Fort  Wayne,  and  Chicago  Company,  and  the  Chicago,  St.  Paul, 
and  Fond  Du  Lac  Company  (now  merged  in  the  Chicago  and  North- 
western Company)  constructed  a  track  on  West  Water  Street,  from  Van 
Buren  Stieet  north  to  Kinzie  Street,  for  the  purpose  of  forming  a  con- 
nection between  the  two  roads.  The  Pittsburgh,  Fort  Wayne,  and 
Chicago  Company  laid  the  track  from  Van  Buren  to  Randolph  Street, 
and  the  Chicago,  St.  Paul,  and  Fond  Du  Lac  Company,  that  portion 
of  the  track  from  Randolph  north  to  its  own  depot.  These  different 
portions  of  tlie  track  were,  however,  constructed  by  these  two  com- 
panies, by  an  arrangement  between  themselves,  the  precise  character 
of  which  does  not  appear,  but  it  is  to  be  inferred  from  the  record  that 
they  have  a  common  right  to  the  use  of  the  track  from  Van  Buren  Street 
to  Kinzie,  and  do  in  fact  use  it  in  common.  The  elevator  of  the  rela- 
tors is  situated  south  of  Randolph  Street,  and  north  of  Van  Buren,  and 
is  connected  with  the  main  track  by  a  side  track  laid  by  the  Pittsburgh 
Company,  at  the  request  and  expense  of  the  owners  of  the  elevator, 
and  connected  at  each  end  with  the  main  track. 


244  CHICAGO   AND    NOKTHWESTERN    KAILROAD   V.    PEOPLE. 

Since  the  10th  of  August,  1866,  the  Chicago  and  Northwestern  Com- 
pany, in  consequence  of  certain  arrangements  and  agreements  on  and 
before  that  ilay  entered  into  between  the  company  and  the  owners  of 
certain  elevators,  known  as  the  Galena,  Northwestern,  Munn  &  Scott, 
Union,  City,  Munger  and  Armor,  and  Wheeler,  has  refused  to  deliver 
grain  in  bulk  to  any  elevator  except  those  above  named.  There  is  also 
in  force  a  rule  of  the  company,  adopted  in  1864,  forbiddino-  the  carriao-e 
of  grain  in  bulk,  if  consigned  to  any  particular  elevator  in  Chicago,  thus 
reserving  to  itself  the  selection  of  tlie  warehouse  to  which  the  grain 
should  be  delivered.  The  rule  also  provides  that  grain  in  bags  shall 
be  charged  an  additional  price  for  transportation.  This  rule  is  still  in 
force. 

The  situation  of  these  elevators,  to  which  alone  the  company  will 
deliver  grain,  is  as  follows :  The  Northwestern  is  situated  near  the 
depot  of  the  Wisconsin  division  of  the  road,  north  of  Kinzie  Street ; 
the  Munn  &  Scott  on  West  Water  Street,  between  the  elevator  of  rela- 
tors and  Kinzie  Street ;  the  Union  and  City  near  Sixteenth  Street,  and 
approached  only  by  the  track  diverging  from  the  Galena  division,  on 
the  west  side  of  the  city,  already  mentioned  ;  and  the  others  are  on  the 
east  side  of  the  north  branch  of  the  Chicago  River.  The  Munn  &  Scott 
elevator  can  be  reached  only  by  the  line  laid  on  West  Water  Street, 
under  the  city  ordinance  already  mentioned  ;  and  the  elevator  of  rela- 
tors is  reached  in  the  same  way,  being  about  four  and  a  half  blocks 
further  south.  The  line  of  the  Galena  division  of  the  road  crosses  the 
line  on  West  Water  Street  at  nearly  a  right  angle,  and  thence  crosses 
the  North  Branch  on  a  bridge.  It  appears  by  the  return  to  the  writ, 
that  a  car  coming  into  Chicago  on  the  Galena  division,  in  order  to 
reach  the  elevator  of  relators,  would  have  to  be  taken  by  a  drawbridge 
across  the  river  on  a  single  track,  over  which  the  great  mass  of  the 
business  of  the  Galena  division  is  done,  then  backed  across  the  river 
again  upon  what  is  known  as  tlie  Milwaukie  division  of  respondent's 
road,  thence  taken  to  the  track  on  West  Water  Street,  and  the  cars, 
w4ien  unloaded,  could  only  be  taken  back  to  the  Galena  division  ])y  a 
similar,  but  reversed,  process,  tlius  necessitating  the  passage  of  the 
drawl )ridge,  with  only  a  single  line,  four  times,  and,  as  averred  in  the 
return  subjecting  the  company  to  great  loss  of  time  and  pecuniaiy 
damage  in  the  delay  tliat  would  be  caused  to  its  regular  trains  and 
business  on  tliat  division. 

This  seems  so  apparent  thnt  it  cannot  bp  fairly  claimed  the  elevator 
of  relators  is  upon  the  line  of  the  Galena  division,  in  any  such  sense  as 
to  make  it  obligatory  upon  the  company  to  deliver  upon  West  Water 
Street  freight  coming  over  that  division  of  the  road.  The  doctrine  of 
the  Vincent  Case,  in  49  111.,  was,  that  a  railway  company  must  deliver 
grain  to  any  elevator  which  it  liad  allowed,  by  a  switch,  to  be  connected 
with  its  own  line.  Tiiis  rule  has  been  reaffirmed  in  an  opinion  filed  at 
the  present  term,  in  the  case  of  Tlie  People  ex  rel.  Hempstead  v.  The 
Chi.  &  Alton  R.  R.  Company,  55  111.  95,  but  in  the  last  case  we  have 


CHICAGO   AND   NORTHWESTERN   RAILROAD   V.   PEOPLE.         245 

also  held  that  a  railwa}'  company  cannot  be  compelled  to  deliver  be3'ond 
its  own  line  simpl}'  because  there  are  connecting  tracks  over  which  it 
might  pass  b}-  paying  track  service,  but  which  it  has  never  made  a  part 
of  its  own  line  by  use. 

So  far  as  we  can  judge  from  this  record,  and  the  maps  showing  the 
railway  lines  and  connections,  filed  as  a  part  thereof,  the  Wisconsin 
and  Milwaukie  divisions,  running  northwest,  and  the  Galena  division, 
running  west,  thougli  belonging  to  the  same  corporation  and  having  a 
common  name,  are,  for  the  purposes  of  transportation,  sub.stantially 
different  roads,  constructed  under  different  charters,  and  the  track  on 
West  Water  Street  seems  to  have  been  laid  for  the  convenience  of  the 
Wisconsin  and  Milwaukie  divisions.  It  would  ])e  a  harsh  and  unrea- 
sonable application  of  the  rule  announced  in  the  Vincent  Case,  and  a 
great  extension  of  the  rule  be3'ond  anything  said  in  that  case,  if  we 
were  to  hold  that  these  relators  could  compel  the  company  to  deliver  at 
their  elevator  grain  which  has  been  transported  over  the  Galena  divi- 
sion, merely-  because  the  delivery  is  physically  possible,  thougli  causing 
great  expense  to  the  company  and  a  great  derangement  of  its  general 
business,  and  though  the  track  on  West  Water  Street  is  not  used  b}' 
the  company  in  connection  with  the  business  of  the  Galena  division. 

What  we  have  said  disposes  of  the  case  so  far  as  relates  to  the 
deliver}'  of  grain  coming  over  the  Galena  division  of  respondent's  road. 
As  to  such  grain,  the  mandamus  should  not  have  been  awarded. 

When,  however,  we  examine  the  record  as  to  the  connection  between 
the  relators'  elevator  and  the  Wisconsin  and  Milwaukie  divisions  of 
respondent's  road,  we  find  a  veiy  different  state  of  facts.  Tiie  track  on 
West  Water  Street  is  a  direct  continuation  of  the  line  of  the  Wisconsin 
and  Milwaukie  division  ;  cars  coming  on  this  track  from  these  divisions 
do  not  cross  the  river.  The  Munn  &  Scott  elevator,  to  which  the  re- 
spondent delivers  grain,  is,  as  already  stated,  upon  a  side  track  con- 
nected with  this  track.  The  respondent  not  only  uses  this  track  to 
deliver  grain  to  the  Munn  &  Scott  elevator,  but  it  also  delivers  lumber 
and  otlier  freight  upon  this  track,  thus  making  it  not  only  legally,  but 
actuall}-,  by  positive  occupation,  a  part  of  its  road.  The  respondent, 
in  its  return,  admits  in  explicit  terms,  that  it  lias  an  equal  interest  with 
the  Pittsburgh,  Fort  Wayne,  and  Chicago  Railroad  in  the  track  laid  in 
West  Water  Street.  It  also  admits  its  use  ;  and  the  only  allegation 
made  in  the  return  for  the  purpose  of  showing  any  ditflculty  in  deliver- 
ing to  relators'  elevator  the  grain  consigned  thereto  from  the  Wisconsin 
and  jNIilwaukie  divisions,  is,  that  those  divisions  connect  with  the  line 
on  West  Water  Street  only  by  a  single  track,  and  that  I'espondent  can- 
not deliver  bulk  grain  or  other  freight  to  the  elevator  of  relators,  even 
from  those  divisions,  without  large  additional  expense,  caused  by  the 
loss  of  the  use  of  motive  power,  labor  of  servants,  and  loss  of  use  of 
cars,  while  the  same  are  being  delivered  and  unloaded  at  said  elevator 
and  brought  back.  As  a  reason  for  non-delivery  on  the  ground  of  diffi- 
cult}',  this  is  sim[)ly  frivolous.     The  expense  caused  by  the  loss  of  the 


246  CHICAGO    AND    NORTHWESTERN    RAILKOAD    V.    PEOPLE. 

use  of  motive  power,  labor,  and  cars,  while  the  latter  are  being  taken 
to  their  place  of  destination  and  unloaded,  is  precisely  the  expense  for 
which  the  company  is  paid  its  freight.  It  has  constructed  this  line  on 
West  Water  Street,  in  order  to  do  the  very  work  which  it  now,  in 
general  terms,  pronounces  a  source  of  large  additional  expense  ;  yet  it 
does  not  find  the  alleged  additional  expense  an  obstacle  in  the  way  of 
delivering  grain  upon  this  track  at  the  warehouse  of  Munn  &  Scott,  or 
delivering  other  freights  to  other  persons  than  the  relators.  Indeed,  it 
seems  evident,  from  the  diagrams  attached  to  the  record,  that  three  of 
the  elevators,  to  which  the  respondent  delivers  grain,  are  more  difficult 
of  access  than  that  of  the  relators,  and  three  of  the  others  have  no 
appreciable  advantage  in  that  respect,  if  not  placed  at  a  decided  dis- 
advantage by  the  fact  that  they  can  be  reached  only  by  crossing  the 
river. 

We  presume,  however,  from  the  argument  that  the  respondent's 
counsel  place  no  reliance  upon  this  allegation  of  additional  expense,  so 
far  as  the  Wisconsin  and  Milwaukie  divisions  are  concerned.  They 
rest  the  defence  on  the  contracts  made  between  the  company-  and  the 
elevators  above  named,  for  exclusive  delivery  to  the  latter  to  the  extent 
of  their  capacity.  This  brings  us  to  the  most  important  question  in  the 
case.  Is  a  contract  of  this  character  a  valid  excuse  to  the  company  for 
refusing  to  deliver  grain  to  an  elevator,  upon  its  lines  and  not  a  party 
to  the  conti-act,  to  which  such  grain  has  been  consigned? 

In  the  oral  argument  of  this  case  it  was  claimed,  by  counsel  for  the 
respondent,  tliat  a  railway  company  was  a  mere  private  corporation, 
and  that  it  was  the  right  and  duty  of  its  directors  to  conduct  its  busi- 
ness merely  with  reference  to  the  pecuniary  interests  of  the  stockholders. 
The  printed  arguments  do  not  go  to  this  extent,  in  terms,  but  they  are 
colored  throughout  by  the  same  idea,  and  in  one  of  them  we  find  coun- 
sel applying  to  the  Supreme  Court  of  the  United  States,  and  the  Supreme 
Court  of  Pennsylvania,  language  of  severe,  and  almost  contemptuous, 
disparagement,  because  those  tribunals  have  said  that  "  a  common  car- 
rier is  in  the  exercise  of  a  sort  of  public  office."  N.  J.  Steam  Nav.  Co. 
V.  Merch.  Bank,  G  How.  381  ;  Sanford  v.  Railroad  Co.,  24  Pa.  380.  If 
the  language  is  not  ci'itically  accurate,  perhaps  we  can  pardon  these 
courts,  when  we  find  that  substantially  the  same  language  was  used 
by  Lord  Holt,  in  Coggs  v.  Bernard,  2  Lord  Raymond,  009.  the  leading 
case  in  all  our  books  on  the  subject  of  bailments.  The  language  of  that 
case  is,  that  the  common  carrier  "  exercises  a  public  emploj'ment." 

We  shall  engage  in  no  discussion  in  regard  to  names.  It  is  immate- 
rial whether  or  not  these  corporations  can  be  properly  said  to  be  in  the 
exercise  of  "  a  sort  of  public  office,"  or  whether  they  aiv  to  be  styled 
private,  or  qxasi  pul)lic  corporations.  Certain  it  is,  that  they  owe 
some  important  duties  to  the  public,  and  it  ot^ly  concerns  us  now  to 
ascertain  the  extent  of  these  duties  as  regards  the  case  made  upon  this 
record. 

It  is  admitted  by  respondent's  counsel  that  railwny  companies  are 


CHICAGO    AND    NORTHWESTERN    RAILROAD    V.    PEOPLE.  247 

cominon  carriers,  though  even  that  admission  is  somewhat  grudgingly 
made.  Regarded  merely  as  a  common  carrier  at  common  law,  and  in- 
dependently of  any  obligations  imposed  by  the  acceptance  of  its  charter, 
it  would  owe  important  duties  to  the  public,  from  which  it  could  not 
release  itself,  except  with  the  consent  of  every  person  who  miglit  call 
upon  it  to  perform  them.  Among  these  duties,  as  well  defined  and 
settled  as  anything  in  the  law,  was  the  obligation  to  receive  and  carry 
goods  for  all  persons  alike,  without  injurious  discrimination  as  to 
terms,  and  to  deliver  them  in  safety  to  the  consignee,  unless  prevented 
by  the  act  of  God  or  the  public  enemy.  These  obligations  grew  out  of 
the  relation  voluntarily  assumed  by  the  carrier  toward  the  public,  and 
the  requirements  of  public  policy,  and  so  important  have  they  been 
deemed  that  eminent  judges  have  often  expressed  their  regret  that 
common  carriers  have  ever  been  permitted  to  vary  their  common-law 
liability,  even  by  a  special  contract  with  the  owner  of  the  goods. 

Regarded,  then,  merely  as  a  common  carrier  at  common  law,  the 
respondent  should  not  be  permitted  to  say  it  will  deliver  goods  at  the 
warehouse  of  A  and  B,  but  will  not  deliver  at  the  warehouse  of  C, 
the  latter  presenting  equal  facilities  for  the  discharge  of  freight,  and 
being  accessible  on  respondent's  line. 

But  railway  companies  may  well  be  regarded  as  under  a  higher 
obligation,  if  that  were  possible,  than  that  imposed  by  the  common 
law,  to  discharge  their  duties  to  the  public  as  common  carriers  fairl}- 
and  impartialh'.  As  has  been  said  by  other  courts,  the  State  has 
endowed  them  with  something  of  its  own  sovereignty,  in  giving  them 
the  right  of  eminent  domain.  B}'  virtue  of  this  power  they  take  the 
lands  of  the  citizen  against  his  will,  and  can,  if  need  be,  demolish  his 
house.  Is  it  supposed  these  great  powers  were  granted  merely  for  the 
private  gain  of  the  corporators?  On  the  contrary,  we  all  know  the 
companies  were  created  for  the  public  good. 

The  object  of  the  legislature  was  to  add  to  the  means  of  travel  and 
commerce.  If,  then,  a  common  carrier  at  common  law  came  under 
obligations  to  the  public  from  which  he  could  not  discharge  himself  at 
his  own  volition,  still  less  should  a  railwa}'  company  be  permitted  to  do 
so,  when  it  was  created  for  the  public  benefit,  and  has  received  from 
the  public  such  extraordinaiy  privileges.  Railway  charters  not  onh' 
give  a  perpetual  existence  and  great  power,  but  they  have  been  con- 
stantly recognized  by  the  courts  of  this  country  as  contracts  between 
the  companies  and  the  State,  imposing  reciprocal  obligations. 

The  courts  have  always  been,  and  we  trust  always  will  be,  ready  to 
protect  these  companies  in  tlieir  chartered  rights,  but,  on  the  other 
hand,  we  should  be  equally  ready  to  insist  that  they  perform  faithfullv 
to  the  public  those  duties  which  were  the  object  of  their  chartered 
powers. 

We  are  not,  of  course,  to  be  understood  as  saying  or  intimating  that 
the  legislature,  or  the  courts,  may  require  from  a  railway  compan3-  tlie 
performance  of  an\-  and  all  acts  that  might  redound  to  the  public  benefit, 


248  CHICAGO   AND   NORTHWESTEKN   KAILROAD   V.   PEOPLE. 

without  reference  to  the  pecuniarj'  welfare  of  the  company  itself.  We 
hold  simply  that  it  must  perform  all  those  duties  of  a  common  carrier 
to  which  it  knew  it  would  be  liable  when  it  sought  and  obtained  its 
charter,  and  the  fact  that  the  public  has  bestowed  upon  it  extraordi- 
nary powers  is  but  an  additional  reason  for  holding  it  to  a  complete 
performance  of  its  obligations. 

The  duty  sought  to  be  enforced  in  this  proceeding  is  the  delivery  of 
grain  in  bulk  to  the  warehouse  to  which  it  is  consigned,  such  warehouse 
being  on  the  line  of  the  respondent's  road,  with  facilities  for  its  delivery 
equal  to  those  of  the  other  warehouses  at  which  the  company  does 
deliver,  and  the  carriage  of  grain  in  bulk  being  a  part  of  its  regular 
business.  This,  then,  is  the  precise  question  decided  in  the  Vincent 
Case,  in  49  111.,  and  it  is  unnecessary  to  repeat  what  was  there  said. 
We  may  remark,  however,  that,  as  the  argument  of  counsel  necessarily 
brought  that  case  under  review,  and  as  it  was  decided  before  the  re- 
organization of  this  court  under  the  new  constitution,  the  court  as  now 
constituted  has  re-examined  that  decision,  and  fully  concurs  therein. 
That  case  is  really  decisive  of  the  present,  so  far  as  respects  grain 
transported  on  the  Wisconsin  and  Milwaukie  divisions  of  respondent's 
road.  The  only  difference  between  this  and  the  Vincent  Case  is  in 
the  existence  of  the  contract  for  exclusive  delivery  to  the  favored  w-are- 
houses,  and  this  contract  can  have  no  effect  when  set  up  against  a 
person  not  a  party  to  it,  as  an  excuse  for  not  performing  toward  such 
person  those  duties  of  a  common  carrier  prescribed  by  the  common  law, 
and  declared  by  the  statute  of  the  State. 

The  contract  in  question  is  peculiarly  objectionable  in  its  character, 
and  peculiarly'  defiant  of  the  obligations  of  the  respondent  to  the  public 
as  a  common  carrier.  If  the  principle  implied  in  it  were  conceded,  the 
railway-  companies  of  the  State  might  make  similar  contracts  with  indi- 
viduals at  every  important  point  upon  their  lines,  and  in  regard  to  other 
articles  of  commerce  besides  grain,  and  thus  subject  the  business  of  the 
State  almost  wholly  to  their  control,  as  a  means  of  their  own  emolument. 
Instead  of  making  a  contract  with  several  elevators,  as  in  the  present 
case,  each  road  that  enters  Chicago  might  contract  with  one  alone, 
and  thus  give  to  the  owner  of  such  elevator  an  absolute  and  complete 
monopoly  in  the  handling  of  all  the  grain  that  might  be  transported 
over  such  road.  So,  too,  at  every  important  town  in  the  interior,  each 
road  might  contract  that  all  the  lumber  carried  by  it  should  be  con- 
signed to  a  particular  yard.  How  injurious  to  the  public  would  be  the 
creation  of  such  a  system  of  organized  monopolies  in  the  most  important 
articles  of  commerce,  claiming  existence  under  a  perpetual  charter  from 
the  State,  and,  by  the  sacredness  of  such  charter,  claiming  also  to  set 
the  legislative  will  itself  at  defiance,  it  is  hardly  worth  while  to  specu- 
late. It  would  be  difficult  to  exaggerate  the  evil  of  which  such  a 
83'stem  would  be  the  cause,  when  full_y  developed,  and  managed  by 
unscrupulous  hands. 

Can  it  be  seriously-  doubted  whether  a  contract,  involving  such  a 


CHICAGO   AND   NORTHWESTERN   RAILROAD   V.    PEOPLE.  249 

principle,  and  such  results,  is  in  conflict  with  the  duties  which  the 
company  owes  to  the  public  as  a  common  carrier?  The  fact  that  a 
contract  has  been  made  is  really  of  no  moment,  because,  if  the  com- 
pany can  bind  the  public  by  a  contract  of  this  sort,  it  can  do  the  same 
thing  by  a  mere  regulation  of  its  own,  and  sa}'  to  these  relators  that  it 
will  not  deliver  at  their  warehouse  the  grain  cons'irned  to  them,  because 
it  prefers  to  deliver  it  elsewhere.  The  contract,  if  vicious  in  itself,  so 
far  from  excusing  the  road,  only  shows  that  the  policy  of  delivering 
grain  exclusively  at  its  chosen  warehouses  is  a  deliberate  policy,  to  be 
followed  for  a  term  of  years,  during  which  these  contracts  run. 

It  is,  however,  urged  ver\'  strenuously  by  counsel  for  the  respondent, 
that  a  common  carrier,  in  the  absence  of  contract,  is  bound  to  carry  and 
deliver  only  according  to  the  custom  and  usage  of  his  business  ;  that  it 
depends  upon  himself  to  establish  such  custom  and  usage  ;  and  that 
the  respondent,  never  having  held  itself  out  as  a  carrier  of  grain  in 
bulk,  except  upon  the  condition  that  it  ma}'  itself  choose  the  consignee, 
this  has  become  the  custom  and  usage  of  its  business,  and  it  cannot  be 
required  to  go  beyond  this  limit.  In  answer  to  this  position,  the  fact 
that  the  respondent  has  derived  its  life  and  powers  from  the  people, 
through  the  legislature,  comes  in  with  controlling  force.  Admit,  if  the 
respondent  were  a  private  association,  which  had  establislicd  a  line  of 
wagons,  for  the  purpose  of  carrying  grain  from  the  Wisconsin  boundary 
to  the  elevator  of  Munn  &  Scott  in  Chicago,  and  had  never  offered  to 
carry  or  deliver  it  elsewhere,  that  it  could  not  be  compelled  to  depart 
from  the  custom  or  usage  of  its  trade.  Still  the  admission  does  not 
aid  the  respondent  in  this  case.  In  the  case  sup[)08ed,  the  carrier 
would  estal)lish  the  terminal  points  of  his  route  at  his  own  discretion, 
and  could  change  them  as  his  interests  might  demand.  He  offers  him- 
self to  the  public  only  as  a  common  carrier  to  that  extent,  and  he  can 
abandon  his  first  line  and  adopt  another  at  his  own  volition.  If  he 
should  aband(ni  it,  and,  instead  of  offering  to  carr}-  grain  only  to  the 
elevator  of  ^lunn  &  Scott,  should  offer  to  carry  it  generally  to  Chicago, 
then  he  would  clearl}'  be  obliged  to  deliver  it  to  an}-  consignee  in 
Chicago,  to  whom  it  might  be  sent  and  to  whom  it  could  be  delivered, 
the  place  of  delivery  being  upon  his  line  of  carriage. 

In  the  case  before  us,  admitting  the  {X)sition  of  counsel  that  a  com- 
mon carrier  establishes  his  own  line  and  terminal  points,  the  question 
arises,  at  what  time  and  how  does  a  railway  company  establish  them? 
We  answer,  when  it  accepts  from  the  legislature  the  charter  which 
gives  it  life,  and  by  virtue  of  such  acceptance.  That  is  the  point  of 
time  at  which  its  obligations  begin.  It  is  then  that  it  holds  itself  out 
to  the  world  as  a  common  carrier,  whose  business  will  begin  as  soon 
as  the  road  is  constructed  upon  the  line  which  the  charter  has  fixed. 
Suppose  this  respondent  had  asked  from  the  legislature  a  charter  au- 
thorizing it  to  carry  grain  in  bulk  to  be  delivered  only  at  the  elevator 
of  Munn  &  Scott,  and  nowhere  else  in  the  city  of  Chicago.  Can  an}' 
one  suppose  such  charter  would  have  been  granted?     The  supposition  is 


250  CHICAGO    AND    NORTHWESTERN    RAILROAD    V.    PEOPLE. 

preposterous.  But,  instead  of  a  charter  making  a  particular  elevator  the 
teraiinus  and  place  of  delivery,  the  legislature  granted  one  which  made 
the  city  of  Chicago  itself  the  terminus,  and  when  this  chartei-  was  ac- 
cepted there  at  once  arose,  on  the  part  of  the  respondent,  the  corre- 
sponding obligation  to  deliver  grain  at  any  point  within  the  city  of 
Chicago,  upon  its  lines,  with  suitable  accommodations  for  receiving  it, 
to  which  such  grain  might  be  consigned.  Perhaps  grain  in  bulk  was 
not  then  carried  in  cars,  and  elevators  may  not  have  been  largel}'  intro- 
duced. But  the  charter  was  granted  to  promote  the  conveniences  of 
commerce,  and  it  is  the  constant  duty  of  the  respondent  to  adapt  its 
agencies  to  that  end.  When  these  elevators  were  erected  in  Chicago, 
to  which  the  respondent's  line  extended,  it  could  onl}'  cany  out  the 
obligations  of  its  charter  by  receiving  and  delivering  to  each  elevator 
whatever  grain  might  be  consigned  to  it,  and  it  is  idle  to  say  such 
obligation  can  be  evaded  b}'  the  claim  that  such  delivery  has  not  been 
the  custom  or  usage  of  respondent.  It  can  be  permitted  to  establish 
no  custom  inconsistent  with  the  spirit  and  object  of  its  charter. 

It  is  claimed  b}-  counsel  that  the  charter  of  respondent  authorizes  it 
to  make  such  contracts  and  regulations  as  might  be  necessarj'  in  the 
transaction  of  its  business.  But  certainly  we  cannot  suppose  the  legis- 
lature intended  to  autiiorize  the  making  of  such  rules  or  contracts  as 
would  defeat  the  very  object  it  liad  in  view  in  granting  the  charter. 
The  company  can  make  such  rules  and  contracts  as  it  pleases,  not  in- 
consistent with  its  duties  as  a  common  carrier,  but  it  can  go  no  further, 
and  any  general  language  which  its  charter  may  contain  must  neces- 
sarily be  construed  with  that  limitation.  In  the  case  of  The  Cit}'  of 
Chicago  V.  Rumpff,  45  111.  94,  this  court  held  a  clause  in  the  charter, 
giving  the  common  council  the  right  to  control  and  regulate  the  business 
of  slaughtering  animals,  did  not  authorize  the  city  to  create  a  monopol}^ 
of  tiie  business,  under  pretence  of  regulating  and  controlling  it. 

It  is  unnecessary  to  speak  particularl3-  of  the  rule  adopted  by  the 
company  in  reference  to  the  transportation  of  grain.  What  we  have 
said  in  regard  to  the  contract  applies  equally  to  the  rule. 

The  principle  that  a  railroad  company  can  make  no  injurious  or 
arbitrary  discrimination  between  individuals  in  its  dealings  with  the 
public,  not  only  commends  itself  to  our  reason  and  sense  of  justice,  but 
is  sustained  l\y  adjudged  cases.  In  England,  a  contract  which  admitted 
to  tlie  door  of  a  station,  within  the  yard  of  a  railway  company,  a  certain 
omnibus,  and  excluded  another  omnibus,  was  held  void.  Marriot  v. 
L.  &  S.  W.  R.  R.  Co.,  1  C.  B.  (N.S.),  498. 

In  Gaston  v.  Bristol  &  Exeter  Railroad  Company,  6  C.  B.  (N.  S.)  G41, 
it  was  held,  that  a  contract  with  certain  ironmongers,  to  carry  their 
freight  for  a  less  [)rice  tlian  that  charged  the  pultlic,  was  illegal,  no 
good  reason  for  the  discrimination  being  shown. 

In  Crouch  v.  Tlie  L.  &  N.  W.  R.  Co.,^4  C.  B.  254,  it  was  held  a  rail- 
wa}-  company  could  not  make  a  regulation  for  the  conveyance  of 
goods  which,  in  practice,  affected  one  individual  only. 


COE    V.    LOUISVILLE    &    NASHVILLE    RAILROAD.  251 

In  Sandford  v.  Railroad  Companj',  24  Pa.  382,  the  court  held  that 
the  power  given  in  the  charter  of  a  railway  company  to  regulate  the 
transportation  of  the  road  did  not  give  the  right  to  grant  exclusive 
privileges  to  a  particular  express  company.  The  court  sa}-,  "If  the 
company  possessed  this  power,  it  might  build  up  one  set  of  men  and 
destroy  others ;  advance  one  kind  of  business  and  break  down  another, 
and  make  even  religion  and  politics  the  tests  in  the  distribution  of  its 
favors.  The  rights  of  the  people  are  not  subject  to  any  such  corpoiate 
control." 

We  refer  also  to  Rogers'  Locomotive  Works  v.  Erie  R.  R.  Co.,  5 
Green,  380,  and  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn.  538. 

It  is  insisted  by  counsel  for  the  respondent  that,  even  if  the  relators 
have  just  cause  of  complaint,  the}-  cannot  resort  to  the  writ  of  manda- 
mus. We  are  of  opinion,  however,  that  they  can  have  an  adequate 
remedy  in  no  other  wa}-,  and  that  the  writ  will  therefore  lie. 

The  judgment  of  the  court  below  awarding  a  peremptory  mandamus 
must  be  reversed,  because  it  applies  to  the  Galena  division  of  respon- 
dent's road,  as  well  as  to  the  Wisconsin  and  Milwaukie  divisions.  If 
it  had  applied  onl}-  to  the  latter,  we  should  have  affirmed  the  judgment. 
The  parties  have  stipulated  that,  in  case  of  reversal,  the  case  shall  be 
remanded,  with  leave  to  the  relators  to  traverse  the  return.  We  there- 
fore make  no  final  order,  but  remand  the  case,  with  leave  to  both  parties 
to  amend  their  pleadings,  if  desired,  in  view  of  what  has  been  said  in 
this  opinion.  Judgment  reversed. 


COE   V.   LOUISVILLE    &   NASHVILLE   RAILROAD. 

Circuit  Court  of  the  United  States,  Middle  District  of 

Tennessee,  1880. 

[3  Fed.  775.] 

Baxter,  C.  J.  The  defendant  corporation  owns  the  Louisville  & 
Nashville  Railroad,  and,  in  virtue  of  its  purchase  of  the  southeastern 
lease  of  the  Nashville  &  Decatur,  and  ownership  of  a  majority  of  llie 
capital  stock  of  the  Nashville,  Chattanooga  &  St.  Louis  Railwa}'  Com- 
pany, controls  ever}-  railroad  centering  at  Nashville.  It  lias,  for  many 
years  past,  been  engaged  in  carrying  such  freights  as  are  usually  trans- 
ported by  rail,  including  live  stock.  Twelve  or  mere  years  since,  when 
it  needed  facilities  for  loading  and  delivering  live  stock,  the  complain  ■ 
ants  bought  a  lot  contiguous  to  defendant's  depot,  in  Nashville,  at 
814,000,  and  fitted  it  up  as  a  stock  yard,  at  a  cost  of  $16,000  more. 
There  was  no  express  contract  between  complainants  and  defendant  in 
relation  to  the  matter.  But  it  is  clear  that  it  was  a  convenience  to  de- 
fendant's business.  By  the  permission  or  acquiescence  of  defendant 
complainants'  yard  was  connected  with  defendant's  road  by  appropriate 
stock  gaps  and  pens,  which  have  been  in  use  by  both  parties  for  more 


252  COE    V.   LOUISVILLE   &   NASHVILLE    RAILROAD. 

than  twelve  3-cars  ;  bnt  on  the  t\vent3--fifth  of  March,  1880,  the  defend- 
ant and  the  Nashville,  Chattanooga  &  St.  Louis  Railway  Company 
entered  into  a  contract  with  the  Union  Stock  Yard  Company,  whereby 
the  said  stock-yard  company  stipulated  "  to  erect,  maintain,  and  keep 
in  good  order,"  etc.,  "  a  stock  yard  in  the  city  of  Nashville,  on  the  line 
of  the  Nashville,  Chattanooga  &  St.  Louis  Railway,"  outside  the  city 
limits,  and  more  than  a  mile  from  complainants'  yard.  And  the  parties 
of  the  first  part  —  the  railroad  companies  ^ —  among  other  things,  agreed 
that  "•  they  would  establish  no  other  stock  yard  in  Nashville,"  and  that 
they  would  "deliver,  and  cause  to  be  delivered,  to  said  party  of  the 
second  part  all  live  stock  shipped  over  the  I'oads  of  tiie  parties  of  the 
first  part,  and  consigned  to  the  city  of  Nashville  ;  the  parties  of  the  first 
part  hereb}'  agreeing  to  make  this  stock  3ard  of  the  part}-  of  the  second 
part  their  stock  depot  for  said  city,  and  will  not  deliver  at  an}-  other 
point  or  points  of  the  city,  and  agree  to  deliver  all  live  stock  shipped,  to 
said  city  of  Nashville  at  the  yards  of  the  part}'  of  the  second  part." 

In  furtherance  of  this  contract,  Edward  B.  Stahlman,  defendant's 
traffic  manager,  and  owner  of  $5,000  of  the  capital  stock  of  the  stock- 
yard company,  issued  the  following  order,  addressed  to  defendant's 
agent,  dated  July  10,  1880 :  "  On  the  fifteenth  inst.  there  will  be 
opened  and  ready  for  business  the  stock  yards  erected  by  the  Union 
Stock  Yard  Company,  at  Nashville,  Tenn.  These  yards  have  every 
facility  for  the  proper  handling  and  care  of  live  stock,  and  will  be  con- 
stituted our  stock  deliver}-  and  forwarding  depots.  Live  stock  from 
and  after  that  date  consigned  to  Nashville  proper,  or  destined  to  any 
points  over  our  line  via  Nashville,  should  be  way-billed  care  of  the 
Union  Stock  Yards  ;  "  and  on  the  twenty-fourth  of  the  same  month 
James  Gcddes,  defendant's  superintendent,  supplemented  the  foregoing 
order  with  a  notice  to  complainants  in  the  fuUowing  words:  "I  am 
directed  by  Mr.  De  Funiak,  general  manager,  to  notify  you  that  after 
the  last  day  of  July,  1880,  no  delivery  of  stock  will  be  made  to  you  at 
our  platform  here,  Nashville  depot,"  to  wit,  the  platform,  gaps,  and 
pens  communicating  with  complainants'  yard,  where  the  defendant  had 
heretofore  delivered  to  them. 

Complainants  remonstrated  against  this  threatened  discrimination 
against  them  and  their  business  ;  but,  being  unable  to  induce  any  change 
in  defendant's  avowed  policy,  filed  their  bill  in  which  they  pray  for  an 
injunction  to  restrain  "  defendant's  agents  and  officers  and  servants 
from  interfering  with  or  in  any  manner  disturbing  the  eiijoyment  and 
facilities  now  accorded  to  complainants  by  the  said  defendant  upon  its 
lines  of  railway,  for  the  transaction  of  business  now  carried  on  by  the 
complainants,  and  especially  from  excluding  or  inliil)iting  persons  from 
consigning  stock  to  com[)lainants,  and  troni  refusing  to  receive  and  trans- 
port stock  from  complainants'  yard,  and  from  interfering  willi  or  in  any 
way  disturbing  the  business  of  the  complainants,  and  from  refusing  to 
permit  the  complainants  to  continue  their  business  on  the  same  terms 
as  heretofore."     The  injunction  asked  for  is  both  inhibitory  and  man- 


COE    V.    LOUISVILLE    &    NASHVILLE    KAILKOAD,  253 

datory ;  it  seeks  to  prohibit  tlie  doing  of  threatened  and  alleged 
wrongful  acts,  and  to  compel  defendant  to  continue  the  facilities  and 
accommodations  heretofore  accorded  b}'  defendant  to  complainants  ; 
and  the  question  is,  are  complainants  entitled,  preliminarily,  to  the 
relief  prayed  for,  or  any  part  of  it? 

The  facts  suggest  the  very  important  inquiry,  how  far  railroads, 
called  into  being  to  subserve  the  public,  can  be  lawfully  manipulated 
b}-  those  who  control  them  to  advance,  incidentall}-,  their  own  private 
interests,  or  depress  the  business  of  particular  individuals  or  localities, 
for  the  benefit  of  other  persons  or  communities.  As  common  carriers 
they  are  In-  law  bound  to  receive,  transport,  and  deliver  freights  offered 
for  that  purpose,  in  accordance  with  the  usual  course  of  business.  The 
delivery,  when  practicable,  must  be  to  the  consignee.  But  the  rule 
which  requires  common  carriers  by  land  to  deliver  to  the  consignee  per- 
sonally at  his  place  of  business,  has  been  somewhat  relaxed  in  favor  of 
said  loads  on  the  ground  that  they  have  no  means  of  delivering  bej'ond 
their  lines  ;  but  it  was  held  in  Vincent  v.  The  Chicago  &  Alton  R.  Co., 
49  111.  33,  that  at  common  law,  and  independent  of  the  statute  relied 
on  in,  the  argument,  that  in  cases  where  a  shipment  of  grain  was  made 
to  a  party  having  a  warehouse  on  the  line  of  the  carrying  road,  who 
had  provided  a  connecting  track  and  was  ready  to  receive  it,  it  would 
be  the  dut}-  of  the  railroad  company  to  make  a  personal  delivery  of  the 
grain  to  the  consignee  at  his  warehouse  ;  because,  say  the  court,  "  the 
common-law  rule  must  be  applied,  as  the  necessity  of  its  relaxation" 
did  not  exist. 

This  rule  is  just  and  convenient,  and  necessary  to  an  expeditious  and 
economical  delivery  of  freights.  It  has  regard  to  their  proper  classifi- 
cation, and  to  tlie  circumstances  of  the  particular  case.  Under  it 
articles  susceptible  of  easy  transfer  may  be  delivered  at  a  general  de- 
livery depot  provided  for  the  purpose.  But  live  stock,  coal,  ore,  grain 
in  bulk,  marble,  etc.,  do  not  belong  to  this  class.  For  these  some  other 
and  more  appropriate  mode  of  delivery  must  be  provided.  Hence  it  is 
that  persons  engaged  in  receiving  and  forwarding  live  stock,  manufac- 
turers consuming  large  quantities  of  heavy  material,  dealers  in  coal, 
and  grain  merchants,  receiving,  storing,  and  forwarding  grain  in  bulk, 
who  are  dependent  on  railroad  transportation,  usually  select  locations 
for  the  prosecution  of  their  business  contiguous  to  railroads,  where  the}' 
can  have  the  benefit  of  side  connections  over  which  their  freight  can  be 
delivered  in  bulk  at  their  private  depots  ;  and  may  a  railroad  company, 
after  encouraging  investments  in  mills,  furnaces,  and  other  productive 
manufacturing  enterprises  on  its  line  of  road,  refuse  to  make  personal 
delivery  of  the  material  necessary  to  their  business,  at  their  depots, 
erected  for  the  purpose,  and  require  them  to  accept  delivery  a  mile  dis- 
tant, at  the  depot  of  and  through  a  rival  and  competing  establishment? 
Or  may  such  railroad  company  establish  a  "  Union  Coal  Yard  "  in  this 
cit}',  and  constitute  it  its  depot  for  the  deliver}'  of  coal,  and  thus  im- 
pose on  all  the  coal  dealers  in  the  city,  with  whom  it  has  side  conneo 


234  COE    V.   LOUISVILLE    &   NASHVILLE    EAILKOAD. 

tions,  the  labor,  expense,  and  delay  of  carting  their  coal  supplies  from 
such  general  delivery  to  their  respective  yards?  Or  may  such  railroad 
company,  in  lilve  manner,  discriminate  between  grain  elevators  in  the 
same  place,  —  constitute  one  elevator  its  depot  for  the  delivery  of  grain, 
and  force  competing  interests  to  receive  from  and  transfer  the  grain 
consigned  to  them  through  such  selected  and  favored  channel? 

If  railroad  corporations  possess  such  right,  they  can  destroy  a  refrac- 
torj-  manufacturer,  exterminate,  or  very  materially  cripple  competition, 
and  in  large  measure  monopolize  and  control  these  several  branches  of 
useful  commerce,  and  dictate  such  terms  as  avarice  may  suggest.  We 
think  the}'  possess  no  such  power  to  kill  and  make  alive.  Impartiality 
in  serving  tbeir  patrons  is  an  imperative  obligation  of  all  railroad  com- 
panies ;  equality  of  accommodations  in  the  use  of  raihoads  is  the  legal 
right  of  ever^bod}-.  The  principle  is  founded  in  justice  and  necessity', 
and  has  been  uniformly  recognized  and  enforced  by  the  courts.  A  con- 
trarv  idea  would  concede  to  railroad  companies  a  dangerous  discretion, 
and  inevitably  lead  to  intolerable  abuses.  It  would,  to  a  limited  ex- 
tent, make  them  masters  instead  of  the  servants  of  the  public.  By  an 
unjust  exercise  of  such  a  power  they  could  destro}-  the  business  of  one 
man  and  build  up  that  of  another,  punish  an  enemy  and  reward  a 
friend,  depress  the  interests  of  one  community  for  the  benefit  of  its 
rival,  and  so  manipulate  their  roads  as  to  compel  concessions  and  se- 
cure incidental  profits  to  which  they  have  no  legal  or  moral  right 
whatever. 

The  case  in  hand  is  but  a  sample  of  what  might  be  done  by  these 
corporations  if  the  power  claimed  in  this  case  is  possessed  by  them. 
Complainants'  stock  yard  was  purchased  and  fitted  up  at  a  heav}-  out- 
lay of  money.  It  was,  at  the  time,  a  necessity  to  defendant's  business. 
By  the  express  agreement  or  tacit  understanding  of  the  parties  suitable 
connections  for  receiving  and  delivering  stock  were  made,  of  which  the 
defendant  availed  itself  for  twelve  years.  But,  after  thus  accepting  the 
benefits  of  complainants'  expenditures,  the  defendant  proposes  to  sever 
its  connections,  withhold  further  accommodations,  decline  to  receive 
fi-om  or  deliver  stock  at  complainants'  yard,  concentrate  its  patronage 
on  the  Union  Stock  Yard  Com  pan}',  require  all  consignors  to  way-bill 
their  stock  to  the  care  of  said  fiivored  company,  and,  by  this  invidious 
discrimination,  compel  complainants  to  carry  on  their  trade  through  a 
rival  yard,  or  else  abandon  their  established  and  lucrative  business. 
The  execution  of  defendant's  threat  would  destroy  complainants'  busi- 
ness, depreciate  their  propertv,  and  deprive  the  public  of  the  protection 
against  exorbitant  charges  which  legitimate  com[)etition,  conducted  on 
equal  terms,  always  insures.  Com[)lainants'  yard  is  on  defendant's 
road  ;  it  furnishes  every  needed  facilitv  ;  was  purchased  and  improved 
in  the  belief  that  they  would  receive  the  same  measure  of  accommoda- 
tion extended  to  others  sustaining  the  same  relation  to  defendant :  fle- 
fendant  can  receive  and  discharge  stock  at  com[)lainaiits*  yard  as  easily 
and  cheaply  as  it  can  at  the  Union  Stock  Yard  Company's  yards.    Such 


COE   V.    LOUISVILLE  &  NASHVILLE    R.   R.  255 

deliver}'  is  both  practicable  and  convenient,  and  it  is,  we  think,  its  legal 
dutv,  under  tlie  facts  of  this  case,  to  do  so. 

But  defendant,  protesting  that  the  proposed  discrimination  in  favor 
of  the  Union  Stock  Yard  Company  would,  if  executed,  constitute  no 
wrong  of  which  complainants  ought  justh'  to  complain,  contends, — 
Jirst,  that  complainants,  even  supposing  the  law  to  be  otherwise,  have 
an  adequate  remedy  at  law,  and  therefore  cannot  have  an\-  relief  from 
a  court  of  chancery  ;  and,  second,  that  if  a  chancery  court  may  enter- 
tain jurisdiction,  no  relief  in  the  nature  of  a  mandatory  order  to  com- 
pel defendant  to  continue  accommodations  to  the  complainants  ought 
to  be  made  until  the  final  hearing.  If  such  is  the  law  it  niust  be  so 
administered.  But  we  do  not  concur  in  this  interpretation  of  the  adju- 
dications. Those  cited  in  argument  are  not,  we  think,  applicable  to 
the  facts  of  this  case.  Complainants  could,  in  the  event  defendant 
carries  its  threat  into  execution  and  withholds  the  accommodations 
claimed  as  their  right,  sue  at  law  and  recover  damages  for  the  wrong 
to  be  thus  inflicted.  But  the}-  could  not,  through  any  process  used  by 
courts  of  law,  compel  defendant  to  specifically  perform  its  legal  duty  in 
the  premises.  And  this  imperfect  redress  could  only  be  attained 
through  a  multiplicit}'  of  suits,  to  be  prosecuted  at  great  expense  of 
money  and  laI)or ;  and  then,  after  reaching  the  end  through  the  harass- 
ing delays  incident  to  such  litigation,  complainants'  business  would  be 
destroj-ed,  and  the  Union  Stock  Yard  Company,  born  of  favoritism  and 
fostered  by  an  illegal  and  unjust  discrimination,  would  be  secure  in  its 
monopoh.  Here  an  adequate  remed\'  can  be  administered  and  a  mul- 
tiplicity of  suits  avoided. 

One  other  point  remains  to  be  noticed.  Ought  a  mandator}-  order  to 
issue  upon  this  preliminary  application  ?  Clearly  not,  unless  the  urgency 
of  the  case  demands  it,  and  the  rights  of  the  parties  are  free  from 
reasonable  doubt.  The  duty  which  the  complainants  seek  by  tliis  suit 
to  enforce  is  one  imposed  and  defined  b}-  law  —  a  dut}-  of  which  the 
court  has  judicial  knowledge.  The  injunction  compelling  its  perform- 
ance, pending  this  controvers}',  can  do  defendant  no  harm  ;  whereas  a 
suspension  of  accommodations  would  work  inevitable  and  irreparable 
mischief  to  complainants.  The  injunction  prayed  for  will,  therefore,  be 
issued. 


256  COVINGTON    STOCK-YAEDS    COMPANY    V.    KEITH. 


COVINGTON   STOCK- YARDS   COMPANY   v.   KEITH. 
Supreme  Court  of  the  United  States,   1891, 

[139  U.  S.  128.] 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

On  the  28th  of  Januaiy,  1886,  George  T.  Bliss  and  Isaac  E.  Gates 
instituted  in  the  court  below  a  suit  in  equity  against  the  Kentucky 
Central  Railroad  Company,  a  corporation  of  Kentucky,  for  the  fore- 
closure of  a  mortgage  or  deed  of  trust  given  to  secure  the  payment  of 
bonds  of  that  company  for  a  large  amount ;  in  which  suit  a  receiver 
was  appointed  who  took  possession  of  the  railroad,  with  authority  to 
operate  it  until  the  further  order  of  the  court. 

The  present  proceeding  was  begun  on  the  18th  of  June,  188G,  b}'  a 
petition  filed  in  the  foreclosure  suit  b}'  Charles  W.  Keith,  wlio  was 
engaged  in  buying  and  selling  on  commission,  as  well  as  on  his  own 
account,  live  stock  brought  to  and  shipped  from  the  city  of  Covington, 
Kentucky,  over  the  Kentucky  Central  Railroad.  The  petition  pro- 
ceeded upon  the  ground  that  unjust  and  illegal  discrimination  had  been 
antl  was  being  made  against  Keith  by  the  receiver  acting  under  and 
pursuant  to  a  written  agreement  made  November  19,  1881,  between  the 
railroad  compan}'  and  the  Covington  Stock- Yards  Company,  a  corpora- 
tion created  under  the  general  laws  of  Kentucky  ;  the  yards  of  the  latter 
company  located  in  Covington,  and  connected  with  the  railroad  tracks 
in  that  city,  being  the  only  depot  of  the  railway  company  that  was  pro- 
vided with  the  necessary  platforms  and  chutes  for  receiving  or  discharg- 
ing live  stock  on  and  from  its  trains  at  that  cit}'.  The  petition  alleged 
that  Keith  was  the  proprietor  of  certain  live-stock  lots  and  yards  in 
that  city  immediateh'  west  of  those  belonging  to  the  Covington  Stock- 
Y'ards  Company,  and  separated  from  them  by  only  one  street  sixty 
feet  in  width  ;  that  he  was  provided  with  all  the  necessary  means  of  re- 
ceiving, feeding,  and  caring  for  such  stock  as  he  purchased,  or  as  might 
be  consigned  to  him  by  others  for  sale  ;  and  that  his  lots  and  yards 
were  used  for  that  purpose  subsequentl_y  to  March  1,  1886,  and  until, 
b}-  the  direction  of  the  receiver,  the  platforms  connecting  them  with 
the  raili'oad  were  torn  up  and  rendered  unfit  for  use.  The  prayer  of 
the  petitioner  was  for  a  rule  against  the  receiver  to  show  cause  why  he 
sliouhl  not  deliver  to  him  at  some  convenient  and  suitable  place  outside 
of  the  lots  or  yards  of  the  said  Covington  Stock-Yards  Com()anv  free 
from  other  than  the  customary  freight  charges  for  transportation,  all 
stock  ow.ned  l\v  or  consigned  to  him  and  brought  over  said  road  to 
Covington. 

The  receiver  filed  a  response  to  the  rule,  and  an  order  was  entered 
giving  leave  to  the  Covington  Stock-Yards  Company  to  file  an  inter- 
vening petition  against  the  railroad  company  and  Keith,  and  requiring 
the  latter  parties  to  litigate   l)ctween  themselves  the  question  of  the 


COVINGTON   STOCK-YAEDS    COMPANY   V.    KEITH.  257 

validity  of  the  above  agreement  of  1881.  The  Stock- Yards  Company 
filed  such  a  petition,  claiming  all  the  rights  granted  by  the  agreement 
referred  to,  and  alleging  that  it  had  expended  sixty  thousand  dollars 
in  constructing  depots,  platforms,  and  chutes,  as  required  by  that 
agreement. 

Referring  to  that  agreement  it  appears  that  the  Stock-Yards  Com- 
pany stipulated  that  its  yards  on  the  line  of  the  railroad  in  Covington 
should  be  maintained  in  good  order,  properly  equipped  with  suitable 
fencing,  feeding-pens,  and  other  customar}-  conveniences  for  handling 
and  caring  for  live  stock,  and  to  that  end  it  would  keep  at  hand  a  suf- 
ficient number  of  skilled  workmen  to  perform  the  operations  required 
of  it,  and  generally  to  do  such  labor  as  is  usuall}-  provided  for  in  stock 
jards  of  the  best  class,  namely,  to  load  and  unload  and  care  for  "  in 
the  best  manner  all  live  stock  delivered  to  them  b}'  the  party  of  the  first 
part  [the  railroad  company]  at  their  own  risk  of  damage  while  so  doing, 
and  in  no  event  to  charge  more  than  sixty  cents  per  car  of  full  loads 
for  loading  and  sixt}'  cents  per  car  for  unloading,  and  no  charges  to  be 
made  for  handling  less  than  full  loads,  as  per  way-bills."  The  Stock- 
Yards  Company  also  agreed  to  become  liable  for  those  charges,  and  to 
collect  and  pay  over  to  the  railroad  company,  as  demanded  from  time 
to  time,  such  money  as  came  into  its  hands,  the  charges  for  feeding 
and  caring  for  live  stock  not  to  be  more  than  was  charged  for  similar 
services  and  supplies  at  other  stock  j^ards  of  the  countr}'.  The  railroad 
compan}',  upon  its  part,  agreed  to  pa}'  the  Stock-Yards  Company*  the 
above  sums  for  loading  and  unloading  and  otherwise  acting  as  its  agent 
in  the  collection  of  fieights  and  charges  upon  such  business  as  was  turned 
over  to  it  by  the  railroad  company  ;  that  it  would  require  all  cars  loaded 
at  yards  for  shipment  South  or  East  to  be  carefully  bedded,  which  the 
Stock-Yards  Company  was  to  do  at  the  rates  usualh'  charged  in  other 
yards  ;  that  it  would  make  the  yards  of  the  Stock- Yards  Company  its 
"depot  for  delivery-  of  all  its  live  stock,"  during  the  term  of  the  con- 
tract, and  not  build,  "  nor  allow  to  be  built,  on  its  right  of  wa}',  anj' 
other  depot  or  yards  for  the  reception  of  live  stock."  The  deliver}-  of 
stock  in  cars  on  switches  or  sidings  provided  for  the  purpose  was  to  be 
considered  a  deliver}-  of  the  stock  to  the  Stock-Yards  Company,  which, 
from  that  time,  was  to  be  responsible  for  the  stock  to  the  railroad  com- 
pany. To  protect  the  business  of  the  Stock-Yards  Company  from  dam- 
age in  case  the  railroad  extended  its  track  over  the  Ohio  River,  the 
railroad  company  agreed  that  during  the  term  of  the  contract  the  rate 
of  freight  from  all  points  on  its  road  and  connections  should  "  not  be 
less  than  five  dollars  per  car  more  to  the  Union  Yards  of  Cincinnati 
than  the  rate  to  Covington  yards  from  the  same  points  ;  "  that  its  busi- 
ness arrangements  with  any  other  railroad  or  transportation  line  should 
be  subject  to  this  agreement;  and  Ihat  the  yards  of  the  Stock-Yards 
Company  "  shall  be  the  depot  for  all  live  stock  received  from  its  con- 
nections for  Cincinnati  or  Eastern  markets."  The  agreement  by  its 
terms  was  to  remain  in  force  for  fifteen  years. 

17 


258  COVINGTON    STOCK-YAKDS   COMPANY   V.    KEITH. 

In  the  progress  of  the  cause  E.  W.  Wilson,  by  consent  of  parties, 
was  made  a  co-petitioner  and  co-respondent  with  Keith. 

B}'  the  final  decree  it  was  found,  ordered,  and  decreed  as  follows: 
"  It  is  the  duty  and  legal  obligation  of  the  Kentucky  Central  Railroad 
Coinpan}-,  as  a  common  carrier  of  live  stock,  to  provide  suitable  and 
convenient  means  and  facilities  for  receiving  on  board  its  cars  all  live 
stock  offered  for  shipment  over  its  road  and  its  connections  from  the 
city  of  Covington,  and  for  the  discharge  from  its  cars  of  all  live  stock 
brought  over  its  road  to  the  said  cit}-  of  Covington,  free  of  any 
charge  other  than  the  customar}'  transportation  charges  to  consignors 
or  consignees  ;  and  that  the  said  petitioners,  Keith  and  Wilson,  live- 
stock dealers  and  brokers,  doing  business  at  the  city  of  Covington,  and 
proprietors  of  tlie  Banner  Stock-Yards  at  that  place,  are  entitled  to  so 
ship  and  receive  over  said  road  such  live  stock  without  being  subject  to 
an}-  such  additional  charges  imposed  by  said  receiver,  said  railroad 
compan}-,  or  other  person  or  corporation.  The  court  further  finds  and 
decrees  that  the  alleged  contract  entered  into  b}'  and  between  the  said 
railroad  company  and  the  said  Covington  Stock-Yards  Company-,  of 
date  the  19th  da}'  of  November,  1881,  does  not  entitle  the  said  Stock- 
Yards  Compan}'  to  impose  upon  any  shipper  of  live  stock  over  said 
road,  passing  such  stock  through  the  yards  of  said  compan}-  to  and 
from  the  cars  of  said  railroad  compan}',  an}-  charge  whatever  for  such 
passage.  It  is  stipulated  in  said  contract  that  said  Stock- Yards  Com- 
pany shall  establish  and  maintain  suitable  yards  or  pens  for  receiving, 
housing,  feeding,  and  caring  for  live  slock,  and  to  receive  all  such 
stock,  and  load  and  unload  the  same  upon  and  from  the  cars  of  said 
company  transported  on  or  to  be  transported  over  said  road  for  a  com- 
pensation of  sixty  cents  per  car  load,  to  be  paid  by  said  railroad  company 
for  and  dui-ing  the  period  of  fifteen  years  from  the  date  of  said  contract, 
which  has  not  yet  expired,  while  the  said  railroad  company  agreed  that 
it  would  not  during  said  period  establish  or  allow  to  be  established  on 
the  line  of  its  road  or  on  its  right  of  way  in  said  city  of  Covington  any 
other  platform  or  depot  than  that  of  said  Stock- Yards  Company  for  the 
receipt  or  delivery  of  such  live  stock.  .  .  .  The  court  doth  further  find 
that  the  general  freight  depot  of  the  said  railroad  company  in  the  said 
city  of  Covington,  at  the  terminus  of  its  road  between  Pike  and  Eighth 
Streets,  is  not  a  suitable  or  convenient  place  for  the  receipt  and  delivery 
of  live  stock  brought  to  the  said  city  or  to  be  shipped  therefrom  over 
said  road,  and  neither  said  railroad  company  nor  said  receiver  having 
provided  such  suitable  depot  or  place  therefor,  except  the  yards  of  said 
Stock-Yards  Company,  it  is  now  ordered  and  decreed  that  the  said  rail- 
road company  and  said  receiver  shall  hereafter  receive  and  deliver  from 
and  to  the  said  Keith  &  Wilson  at  and  through  the  said  Covington 
stock  yards  all  such  live  stock  as  may  be  brought  to  them  or  offered  by 
them  for  shipment  over  said  road  and  its  connections,  upon  the  consent 
of  said  stock  yards,  in  writing,  that  it  may  be  so  done,  being  filed  in 
this  court  and  cause  on  or  before  the  1st  day  of  January  next  after  the 


COVINGTON    STOCK-YARDS    COMPANY   V.    KEITH.  259 

entry  of  this  decree,  free  of  any  charge  for  passing  thi-ough  said  yards 
to  and  from  the  ears  of  said  railroad  company.  In  default  of  such  con- 
sent being  so  filed,  it  is  ordered  and  decreed  that  upon  said  Keith  & 
Wilson  putting  the  platform  and  chute  erected  bj'  them  on  the  land  of 
said  Keith  adjacent  to  the  live-stock  switch  of  said  railroad  compan}^ 
north  of  said  stock  yards  the  said  railroad  company  and  said  receiver 
shall  receive  and  deliver  all  such  live  stock  to  said  Keith  &  Wilson  as 
shall  be  consigned  to  them  or  either  of  them  or  be  offered  by  them  or 
either  of  them  for  shipment  at  said  platform.  The  said  Keith  &  Wilson 
shall  provide  an  agent  or  representative  at  said  platform  to  receive  such 
cattle  as  the}'  may  be  notified  by  said  railroad  compan}-  or  said  receiver 
are  to  be  delivered  to  them  thereat,  and  they  shall  give  the  said  rail- 
road company  or  said  receiver  reasonable  notice  of  an}-  shipment 
desired  to  be  made  b}'  them  from  said  platform  to  conform  to  the  de- 
parture of  live-stock  trains  on  said  road." 

The  railroad  company,  holding  itself  out  as  a  carrier  of  live  stock, 
was  under  a  legal  obligation,  arising  out  of  the  nature  of  its  emplo}'- 
ment,  to  provide  suitable  and  necessar}'  means  and  facilities  for  receiv- 
ing live  stock  offered  to  it  for  shipment  over  its  road  and  connections, 
as  well  as  for  discharging  such  stock  after  it  reaches  the  place  to  which 
it  is  consigned.  The  vital  question  in  respect  to  such  matters  is, 
■whether  the  means  and  facilities  so  furnished  by  the  carrier  or  by  some 
one  in  its  behalf  are  sufficient  for  the  reasonable  accommodation  of 
the  public.  But  it  is  contended  that  the  decree  is  erroneous  so  far  as 
it  compels  the  railroad  company  to  receive  live  stock  offered  by  the  ap- 
pellees for  shipment  and  to  deliver  live  stock  consigned  to  them,  free 
from  any  charge  other  than  the  customary  one  for  transportation,  for 
merely  passing  into  and  through  the  yards  of  the  Covington  Stock- 
Yards  Company  to  and  from  the  cars  of  the  railroad  company.  As  the 
decree  does  not  require  such  stock  to  be  delivered  in  or  through  the 
yards  of  the  appellant,  except  with  its  written  consent  filed  in  this 
cause  ;  as  such  stock  cannot  be  properly  loaded  upon  or  unloaded  from 
cars  within  the  limits  of  the  city,  except  by  means  of  inclosed  lots  or 
yards  set  apart  for  that  purpose,  and  conveniently  located,  in  or  through 
which  the  stock  may  be  received  from  the  shipper  or  delivered  to  the 
consignee,  without  danger  or  inconvenience  to  the  public  in  the  vicinity 
of  the  place  of  shipment  or  discharge  ;  and  as  the  ai)pellant  has  volun- 
tarily undertaken  to  discharge  the  duty  in  these  matters  that  rests  upon 
the  railroad  company,  the  contention  just  adverted  to,  is,  in  effect,  that 
the  carrier  may,  w-ithout  a  special  contract  for  that  purpose,  require 
the  shipper  or  consignee,  in  addition  to  the  customary  and  legitimate 
charges  for  transportation,  to  compensate  it  for  supplying  the  means 
and  facilities  that  must  be  provided  by  it  in  order  to  meet  its  obligations 
to  the  public.     To  this  proposition  we  cannot  give  our  assent. 

When  animals  are  oflfered  to  a  carrier  of  live  stock  to  be  transported 
it  is  its  duty  to  receive  them  ;  and  that  duty  cannot  be  efficiently  dis- 
charged, at  least  in  a  town  or  city,  without  the  aid  of  yards  in  which 


260  COVINGTON    STOCK-YAEDS   COMPANY   V.    KEITH. 

the  stock  offered  for  shipment  can  be  received  and  handled  with  safety 
and  without  inconvenience  to  the  pubhc  while  being  loaded  upon  the 
cars  in  which  thej'  are  to  be  transported.  So,  wlien  live  stock  reach 
the  place  to  which  they  are  consigned,  it  is  the  duty  of  the  carrier  to 
deliver  them  to  the  consignee  ;  and  such  delivery  cannot  be  safely  or 
effectively  made  except  in  or  through  inclosed  yards  or  lots,  convenient 
to  the  place  of  unloading.  In  other  words,  the  duty  to  receive,  trans- 
port, and  deliver  live  stock  will  not  be  fully  discharged,  unless  the 
carrier  makes  such  provision,  at  the  place  of  loading,  as  will  enable  it 
to  properly  receive  and  load  the  stock,  and  such  provision,  at  the  place 
of  unloading,  as  will  enable  it  to  properly  deliver  the  stock  to  the 
consignee. 

A  railroad  company,  it  is  true,  is  not  a  carrier  of  live  stock  with  all 
the  responsiljilities  that  attend  it  as  a  carrier  of  goods.  North  Penn. 
Railroad  v.  Commercial  Bank,  123  U.  S.  727,  734.  There  are  recog- 
nized limitations  upon  the  duty  and  responsibility  of  carriers  of  inani- 
mate property  that  do  not  apply  to  carriers  of  live  stock.  These 
limitations  arise  from  the  nature  of  the  particular  property  transported. 
"But,"  this  court  said,  in  the  case  just  cited,  '-notwithstanding  this 
difference  in  duties  and  responsibilities,  the  railroad  company,  when  it 
undertakes  generally  to  carry  such  freight,  becomes  subject,  under 
similar  conditions,  to  the  same  obligations,  so  far  as  the  delivery  of 
the  animals  which  are  safel}-  transported  is  concerned,  as  in  the  case  of 
goods.  The}'  are  to  be  delivered  at  the  place  of  destination  to  the 
party  designated  to  receive  them  if  he  presents  himself,  or  can  with 
reasonable  efforts  be  found,  or  to  his  order.  No  obligation  of  the  car- 
rier, whether  the  freight  consists  of  goods  or  live  stock,  is  more  strictly 
enforced."  ^  The  same  principle  necessarily  applies  to  the  receiving  of 
live  stock  b}'  the  carrier  for  transportation.  The  carrier  must  at  all 
times  be  in  proper  condition  both  to  receive  from  the  shipper  and  to 
deliver  to  the  consignee,  according  to  the  nature  of  the  property  to  be 
transported,  as  well  as  to  the  necessities  of  the  respective  localities  in 
which  it  is  received  and  delivered.  A  carrier  of  live  stock  has  no  more 
right  to  make  a  special  charge  for  merely  receiving  or  merely  delivering 
such  stock,  in  and  through  stock  yards  provided  by  itself,  in  order  that 
it  ma^'  properly  receive  and  load,  or  unload  and  deliver,  such  stock, 
than  a  carrier  of  passengers  may  make  a  special  charge  for  the  use  of 

1  Myrick  v.  Michigan  Central  Eailroad,  107  U.  S.  102,  107  ;  Hall  &  Co.  v.  Renfro, 

3  Met.  (Ky.)  51,  54;  Myiiiinl  v.  Syracuse  &  Bintrlianiton  Railroad,  71  N.  Y.  180; 
Smith  r.  New  Haven  &  Northampton  Railroad,  12  Allen,  531,  .533  ;  Kimball  i'.  Rutland 
&  liurlington  Railroad,  26  Vt.  247  ;  South  &  North  Alabama  Railroad  Company  ?'. 
Heulein,  52  Ala.  606,  613  ;  Wilson  v.  Hamilton,  4  Ohio  St.  722,  740  ;  Ayres  v.  Chicago 
&  Northwestern  Railroad,  71  Wis.  372,  379,  381  ;  McCoy  v.  K.  &  D.  M.  R.  Co.,  44 
Iowa,  424,  426 ;  Maslin  v.  B.  &  O.  R.  R.  Co.,  14  W.  Va.  180,  188;  St.  Louis  &  South- 
eastern Railway  v.  Dorman,  72  111.  504  ;  Moulton  v.  St.  Paul,  Minneapolis,  &c.  Rail- 
way. 31  Miim.  85,  87  ;  Kansas  Pacific  Railway  r.  Nichols,  9  Kas.  235,  248  ;  Clarke  c. 
Rochester  &  Syracuse  Railroad,  14  N.  Y  570,  573;  Palmer  v.  Grand  Junction  Railway, 

4  :M.  &  W.  749. 


COVINGTON    STOCK-YARDS    COMPANY   V.    KEITH.  2G1 

its  passenger  depot  by  passengers  when  proceeding  to  or  coming  from 
its  trains,  or  than  a  carrier  may  charge  tLe  sliipper  for  the  use  of  its 
general  freight  depot  in  merely  delivering  his  goods  for  shipment,  or 
the  consignee  of  such  goods  for  its  use  in  merely  receiving  them  there 
within  a  reasonable  time  after  they  are  unloaded  from  the  cars.  If  the 
carrier  may  not  make  such  special  charges  in  respect  to  stock  yards 
which  itself  owns,  maintains,  or  controls,  it  cannot  invest  another  cor- 
poration or  company  with  authorit}-  to  impose  burdens  of  that  kind 
upon  shippers  and  consignees.  The  transportation  of  live  stock  begins 
with  their  delivery  to  the  carrier  to  be  loaded  upon  its  cars,  and  ends 
only  after  the  stock  is  unloaded  and  delivered,  or  offered  to  be  deliv- 
ered, to  the  consignee,  if  to  be  found,  at  such  place  as  admits  of  their 
being  safelj'  taken  into  possession. 

We  must  not  be  understood  as  holding  that  the  railroad  compan}-,  in 
this  case,  was  under  any  legal  obligation  to  furnish,  or  cause  to  be  fur- 
nished, suitable  and  convenient  appliances  for  receiving  and  delivering 
live  stock  at  every  point  on  its  line  in  the  city  of  Covington  where  per- 
sons engaged  in  buying,  selling,  or  shipping  live  stock,  chose  to  estab- 
lish stock  yards.  In  respect  to  the  mere  loading  and  unloading  of  live 
stock,  it  is  only  required  by  the  nature  of  its  employment  to  furnish 
such  facilities  as  are  reasonably  sufficient  for  the  business  at  that  citv. 
So  far  as  the  record  discloses,  the  yards  maintained  b}'-  the  appellants 
are,  for  the  purposes  just  stated,  equal  to  all  the  needs,  at  that  city,  of 
shippers  and  consignees  of  live  stock  ;  and  if  the  appellee  had  been 
permitted  to  use  them,  without  extra  charge  for  mere  "  yardage,"  they 
would  have  been  without  just  ground  of  comi)laint  in  that  regard  ;  for 
it  did  not  concern  them  whether  the  railroad  company  itself  maintained 
stock  yards,  or  emplo3'ed  another  company  or  corporation  to  supply 
the  facilities  for  receiving  and  delivering  live  stock  it  was  under  obli- 
gation to  the  public  to  furnish.  But  as  the  appellant  did  not  accord  to 
appellees  the  privileges  they  were  entitled  to  from  its  principal,  the 
carrier,  and  as  the  carrier  did  not  offer  to  establish  a  stock  yard  of  its 
own  for  shippers  and  consignees,  the  court  below  did  not  err  in  requir- 
ing the  railroad  company  and  the  receiver  to  receive  and  deliver  live 
stock  from  and  to  tlie  appellees  at  their  own  stock  yards  in  the  imme- 
diate vicinity  of  appellant's  yards,  when  the  former  were  put  in  proper 
condition  to  be  used  for  that  purpose,  under  such  reasonable  regulations 
as  the  railroad  company  might  establish.  It  was  not  within  the  power 
of  the  railroad  company',  by  such  an  agreement  as  that  of  November 
19,  1881,  or  b}'  agreement  in  an}-  form,  to  burden  the  appellees  with 
charges  for  services  it  was  bound  to  render  without  any  other  compen- 
sation than  the  customary  charges  for  transportation. 

Decree  affirmed. 


262         BUTCHEKS',   ETC.    STOCK-YAKD    CO.    V.   LOUIS.    &   NASH.   K. 

BUTCHERS'    &   DROVERS'    STOCK-YARD   CO.    v.    LOUIS- 
VILLE   &   NASHVILLE   RAILROAD. 

Circuit  Court  of  Appeals,  Sixth  Circuit,  1895. 

[67  Fed.  35  ] 

Taft,  Circuit  Judge,  delivered  the  opinion  of  the  court.^ 
Tliis  is  an  action  in  equity  by  a  stock-yards  company  for  a  manda- 
tory injunction  to  compel  a  railroad  company  to  build,  or  to  allow  to 
be  built,  a  side  track  connecting  a  spur  track  of  the  railroad  company 
with  the  stock  yards  of  the  complainant,  and  there  to  deliver  and  re- 
ceive all  cattle  consigned  to  and  shipped  by  the  complainant.  The 
defendant  answered,  and  the  cause  was  heard  on  pleadings  and  evi- 
dence, and  resulted  in  a  dismissal  of  the  bill.  The  complainant  ap- 
peals. The  facts  are  substantially  as  follows:  The  complainant,  the 
Butchers'  &  Drovers'  Stock-Yards  Company,  was  organized  under 
the  laws  of  Tennessee,  and  entered  upon  its  business  in  1889.  It 
has  a  stock  yard  within  the  city  limits  of  the  city  of  Nashville,  and 
near  to  the  business  centre  thereof.  The  Louisville  &  Nashville 
Railroad  Company  is  a  corporation  of  Kentucky,  whose  line  of 
railroad  extends  to  and  through  Nashville  from  Louisville.  In  1890 
the  city  council  of  the  city  of  Nashville  passed  an  ordinance  permit- 
ting the  defendant  company  to  lay  a  spur  track  from  its  main  track 
along  Front  Street  in  said  city.   .   .   . 

Sidings  were  laid  by  the  defendant  from  the  spur  track  to  the  prop- 
erty of  W.  G.  Bush  &  Co.,  Jacob  Shaffer,  Levi  Langham,  and  the 
Capitol  Electric  Company,  and  others,  under  contracts  made  by  the 
railroad  company  with  these  parties,  in  each  of  which  the  defendant 
retained  the  right  to  disconnect  the  siding  from  the  spur  track  at  any 
time  without  notice  to  the  other  party.  The  persons  or  firms  with 
whom  these  contracts  were  made  were  manufacturing  firms  or  coal 
dealers.  They  all  owned  land  abutting  on  Front  Street.  Complain- 
ant is  engaged  in  receiving,  feeding,  weighing,  selling,  and  shipping 
live  stock  for  the  general  public.  Its  yards  are  a  block  away  from 
the  defendant's  main  line.  ...  In  1891,  after  the  spur  track  and 
the  sidings  already  alluded  to  had  been  constructed,  the  complainant 
requested  the  defendant  that  a  siding  be  so  constructed  in  front  of 
complainant's  property  as  to  allow  the  transportation  of  live  stock 
to  and  from  its  establishment  in  car-load  lots,  and  that  the  same 
facilities  for  transportation  be  afforded  to  it  as  were  enjoyed  by 
Bush  &  Co,  and  the  others  who  then  had  sidings.   .   .   . 

Defendant's  attorney  answered  complainant's  request,  and  stated 
that,  inasmuch  as  the  siding  proposed  appeared  to  be  desired  solely 
for  the  purpose  of  receiving  and  delivering  live  stock  at  defendant's 
yards,  and  the  railroad  company  had  provided  a  station  for  this 
purpose  at  Nashville,  the  establishment  of  another  was  declined. 

^  Part  of  the  opiniou  is  omitted.  —  Ed. 


BUTCHEKS',   ETC.    STOCK-YAKD    CO.    V.    LOUIS.    &   NASH.   K.         263 

The  stock-yards  station  referred  to  was  that  of  the  Union  Stock- 
Yards  Company,  .  .  .  about  a  mile  and  a  half  from  the  stock  yards 
of  the  complainant.  The  evidence  in  the  record,  some  of  which  was 
admitted,  and  some  of  which  was  excluded  by  the  court  below,  shows 
that  no  charge  beyond  the  ordinary  charge  for  transportation  is  made 
for  the  loading  and  unloading  of  cattle  at  the  stock  yards  to  the 
shipper  or  consignee;  that  after  the  cattle  have  been  unloaded,  and 
have  not  been  taken  away  by  the  consignee  from  the  yard  for  two  or 
three  hours,  they  are  then  turned  into  the  pens  of  the  stock  j'ards, 
where  a  chai-ge  of  two  dollars  per  car  for  a  day  or  part  of  a  day  is 
made  by  the  stock-yards  company  for  keeping  them,  until  the  con- 
signee takes  them  away.  When  cattle  arrive  at  night,  the  usual 
result  is  that  they  are  turned  into  the  pens,  because  the  consignee 
cannot  drive  them  through  the  streets  at  night.  There  was  evidence 
also  of  a  charge  of  five  or  ten  cents  pei-  head  by  the  stock-yards  com- 
pany if,  after  the  cattle  have  been  priced  in  the  Union  Yards,  they 
are  removed  without  sale  to  another  stock  yard.   .  .   . 

It  is  insisted  that  the  court  will  not  establish  a  right  that  may  be 
dissolved  at  the  will  of  the  defendant.  The  railroad  company  reserves 
the  right  in  its  contract  with  Bush  to  take  up  the  spur  track  at  any 
time,  and  therefore  it  is  said  that  it  cannot  be  compelled  to  do  that 
for  the  complainant  which  it  might  at  once  cease  to  do  by  taking  up 
the  track.  This  objection  is  untenable.  The  gravamen  of  the  charge 
in  the  bill  is  that  the  railroad  company  is  discriminating  against  the 
complainant,  and  in  favor  of  those  to  whom  sidings  from  the  spur 
track  are  permitted,  and  that  it  should  be  granted  equal  facilities 
with  such  persons.  The  prayer  is  in  form  for  an  injunction  against 
the  discrimination.  If  the  spur  track  is  taken  up,  then  all  who  enjoy 
it  will  be  placed  on  an  equal  footing  and  at  an  equal  disadvantage. 
But  complainant's  claim  is  that,  while  others  enjo}^  the  spur  track,  it 
also  should  have  the  same  facilities.  It  is  clearly  no  defense  to  a 
charge  of  discrimination  that  the  facilities  furnished  the  favored 
person  may  be  withdrawn  at  the  will  of  the  one  who  grants  them. 

We  are  therefore  brought  to  the  issue  whether  or  not  there  is  any 
discrimination  between  those  who  have  side-track  connections  on 
Front  Street  and  the  complainant.  This  depends  on  two  questions: 
First.  Is  it  a  discrimination  which  can  be  controlled  or  restrained 
by  the  courts  for  a  railroad  company  to  furnish  a  side  track  to  one 
of  its  customers,  and  to  refuse  such  accommodation  to  another 
similarly  situated?  Second.  Conceding  an  affirmative  answer  to  the 
first  question,  is  there  such  a  difference  between  the  facilities  de- 
manded by  the  complainant  and  those  extended  to  its  neighbors  on 
Front  Street,  in  respect  of  the  comparative  burdens  which  must  be 
assumed  by  the  railway  company  in  granting  them,  as  to  justify  the 
latter  in  making  the  distinction  it  insists  upon? 

The  first  question  is  one  full  of  difficulty,  both  at  common  law, 
upon  the  principles  of  which  this   case  must  be  decided,  and   also 


264         BUTCHEKS',   ETC.    STOCK-YAKD    CO.    V.   LOUIS.    &   NASH.   R. 

under  the  interstate  commerce  act.  Because  we  are  able  to  satis- 
factorily dispose  of  the  case  on  the  second  question,  we  reserve  con- 
sideration of  the  first  until  the  case  arises  which  requires  it.  We  are 
clearly  of  opinion  that,  however  unjust  and  unlawful  it  may  be  for  a 
railroad  company  having  furnished  a  side  track  to  one  shipper  to 
refuse  it  to  another  similarly  situated,  the  difference  in  this  case  be- 
tween the  business  of  the  complainant  and  that  of  the  other  abutters 
upon  the  spur  track  is  so  great  as  to  make  the  refusal  of  the  railroad 
company  to  grant  the  side  track  to  the  complainant  entirely  reason- 
able. The  difference  between  the  duties  of  a  common  carrier  in  the 
transportation  of  live  stock  and  of  dead  freight  has  been  remarked 
upon  more  than  once  by  the  Supreme  Court  of  the  United  States. 
North  Pennsylvania  R.  Co.  v.  Commercial  Nat.  Bank,  123  U.  S. 
727-734;  Stock-Yards  Co.  v.  Keith,  139  U.  S.  128-133.  The  evi- 
dence clearly  shows  that  the  delivery  of  car-load  lots  of  dead  freight 
and  the  receipt  of  them  by  side  tracks  is  much  less  onerous,  and 
involves  much  less  care  and  responsibility  for  the  railroad  company, 
than  would  the  receipt  of  live  stock  from  a  private  yard  by  side 
track.  One  of  the  chief  reasons  why  deliveries  and  shipments  of  rail- 
road car-load  lots  by  side  track  are  possible  and  consistent  with  the 
conduct  of  the  business  of  a  large  trunk  line  is  that  the  loaded  car 
may  stand  upon  a  side  track  for  hours,  or  even  a  day,  until  the  rail- 
road company  finds  it  convenient  to  back  its  engine  down  and  take  it. 
Such  delays  are  utterly  impossible  in  the  proper  transportation  of  car 
loads  of  live  stock.  Wheu  they  are  loaded,  they  must  be  moved. 
The  evidence  shows  that  in  other  respects  the  supervision  of  the 
switching  of  cattle  cars  would  be  much  more  expensive  and  trouble- 
some to  the  railway  company  than  dead  freight.  Indeed,  it  hardly 
needs  expert  evidence  to  establish  it.  There  is  no  ground,  therefore, 
for  any  charge  of  unjust  discrimination  against  the  defendant  railway 
company  as  between  complainant  and  the  Front  Street  shippers. 

We  come  now  to  the  charge  of  discrimination  as  between  the  Butch- 
ers' &  Drovers'  Stock-Yards  Company  and  the  Union  Stock-Yards 
Company.  [The  court  here  stated  the  case  of  Stock- Yards  Co.  v. 
Keith,  139  U.  S  128,  and  quoted  at  length  from  the  opinion  in  that 
case.] 

In  view  of  the  principles  laid  down  in  this  case,  the  complainant 
has  no  ground  for  objection  to  the  arrangement  between  the  Union 
Stock-Yards  Company  and  the  Louisville  &  Nashville  Railroad  Com- 
pany. The  latter  uses  the  chutes  and  yards  of  the  Union  Stock-Yards 
Company  to  deliver  and  receive  cattle  at  that  point  as  its  station 
without  any  yardage  charge  or  fee  for  the  proper  loading  and  unload- 
ing of  cattle.  The  evidence  wholly  fails  to  support  the  charge  of  the 
bill  that  the  facilities  afforded  by  the  Union  Stock  Yards  are  not 
ample  for  the  business  of  Nashville.  The  evidence  establishes  tliat 
no  charge  is  made  by  the  Union  Stock -Yards  Company  for  two  hours 
after  the  cattle  are  delivered  from  the  cars.     There  is  no  evidence  to 


ATCH.,   TOP.    &   S.    F.    K.   V.   DENVER   &   NEW   ORLEANS   E.        265 

show  that  it  would  be  unreasonable  in  the  railroad  compan}-,  were  it 
the  owner  of  the  stock  yards,  to  impose  a  charge  for  delay  of  the 
consignee  in  taking  his  cattle  beyond  two  hours  after  unloading; 
and,  in  the  absence  of  such  showing,  we  cannot  say  that  it  is  unrea- 
sonable for  the  railroad  company  to  permit  its  agent,  the  stock-yards 
company,  to  make  a  charge  of  two  dollars  per  car  for  turning  the 
cattle  into  the  pens  and  keeping  them  there  after  such  a  delay.  The 
discrimination  averred  and  sought  to  be  proven  by  evidence  that, 
after  the  cattle  have  been  priced  in  the  pen,  they  cannot  be  taken  to 
another  yard  without  paying  a  fee,  concerns  the  business  of  the 
stock-3'ards  company,  and  not  that  of  the  railroad  company,  whose 
responsibility  ends  after  the  cattle  are  properly  delivered  or  tendered 
to  the  consignee.  Of  course,  the  railroad  company  in  delivering  the 
cattle  to  the  stock-yards  company,  to  keep  until  the  appearance  of  the 
consignee,  can  incur  only  a  reasonable  charge  for  the  keeping  of  the 
cattle.  More  than  this,  the  consignee  is  not  obliged  to  pay  the  stock- 
yards company.  If,  however,  he  thereafter  chooses  to  deal  with  the 
stock-yards  company  as  a  factor  or  sales  agent,  and  to  put  a  price 
upon  his  cattle  for  sale,  the  charges  then  imposed  by  the  regulations 
of  the  stock-yards  company,  in  case  of  a  withdrawal  of  the  cattle  to 
another  stock  yard  for  sale,  are  wholly  outside  the  question  of  dis- 
crimination by  the  railroad  company  as  a  common  carrier.  The 
contract  between  the  defendants  and  the  Union  Company  requires 
rates  charged  by  the  latter  to  be  reasonable.  There  is  no  attempt  in 
the  record  to  show  that  the  charge  for  the  simple  keep  of  the  cattle  in 
the  pens  is  unreasonable  or  any  higher  than  the  railway  company 
itself  might  charge  for  such  service. 

The  decree  of  the  court  below  is  affirmed,  with  costs.^ 


ATCHISON,  TOPEKA  AND   SANTA  Ft  RAILROAD  v.  DEN- 
VER  AND   NEW   ORLEANS    RAILROAD. 

Supreme  Court  of  the  United  States.     1884. 

[110  U.  S.  667.1 

This  was  a  bill  in  equity  filed  b}-  the  Denver  &  New  Orleans  Rail- 
road Company,  a  Colorado  corporation,  owning  and  operating  a  rail- 
road in  that  State  between  Denver  and  Pueblo,  a  distance  of  about 
^  Compare;  Walker  (;.  Keenan,  73  Fed.  755.  —  Ed. 


266         ATCH.,    TOP.    &   S.    F.    R.    V.    DEXYEK   &    NEW    OKLEANS   E. 

one  hundred  and  twentj'-five  luiles,  against  the  Atcliison,  Topeka  & 
Santa  Fe  Raih'oad  Companj',  a  Kansas  corporation,  owning  and 
operating  a  railroad  in  that  State  from  the  Missouri  River,  at  Kan- 
sas City,  wester]}-  to  the  Colorado  State  line,  and  also  operating  from 
there,  under  a  lease,  a  road  in  Colorado  from  the  State  line  to  Pueblo, 
built  b}'  the  Pueblo  &  Arkansas  Valley  Railroad  Company,  a  Colorado 
corporation.  The  two  roads  so  operated  by  the  Atchison,  Tojjeka  &  ■ 
Santa  Fe  Company  formed  a  continuous  line  of  communication  from 
Kansas  City  to  Pueblo,  about  six  hundred  and  thirty-four  miles.  The 
general  purpose  of  the  suit  was  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Company  to  unite  with  the  Denver  &  New  Orleans  Company 
in  forming  a  through  line  of  railroad  transportation  to  and  from  Den- 
ver over  the  Denver  &  New  Orleans  road,  with  all  the  privileges  as  to 
exchange  of  business,  division  of  rates,  sale  of  tickets,  issue  of  bills 
of  lading,  checking  of  baggage  and  interchange  of  cars,  that  were  or 
might  be  customary  with  connecting  roads,  or  that  were  or  might  be 
granted  to  the  Denver  &  Rio  Grande  Railroad  Company,  another  Col- 
orado corporation,  also  owning  and  operating  a  road  parallel  to  that  of 
the  Denver  &  New  Orleans  Company  between  Denver  and  Pueblo,  or  to 
any  other  railroad  company  competing  with  the  Denver  &  New  Orleans 
for  Denver  business. 

It  appeared  that  when  the  Atchison,  Topeka  &  Santa  Fe  Company 
reached  Pueblo  with  its  line  it  had  no  connection  of  its  own  with  Den- 
ver. The  Denver  &  Rio  Grande  road  was  built  and  running  between 
Denver  and  Pueblo,  but  the  gauge  of  its  track  was  different  from  that 
of  the  Atchison,  Topeka  «fe  Santa  Fe.  Other  companies  occupying 
different  routes  iiad  at  the  time  substantiall}-  the  control  of  the  trans- 
portation of  passengers  and  freight  between  the  Missouri  River  and 
Denver.  The  Atchison,  Topeka  &  Santa  Fe  Company,  being  desirous 
of  competing  for  this  business,  entered  into  an  arrangement,  as  early 
as  1879,  with  the  Denver  &  Rio  Grande  Company  for  the  formation  of 
a  through  line  of  transportation  for  that  purpose.  By  this  arrange- 
ment a  third  rail  was  to  be  put  down  on  the  track  of  the  Denver  & 
Rio  Grande  road,  so  as  to  admit  of  the  passage  of  cars  continuousl}' 
over  both  roads,  and  terms  w^ere  agreed  on  for  doing  the  business  and 
for  tlie  division  of  rates.  The  object  of  the  parties  was  to  establish  a 
new  line,  which  could  be  worked  with  rapidity  and  economy,  in  compe- 
tition with  the  old  ones.^ 

In  1882  the  Denver  &  New  Orleans  Company  completed  its  road 
between  Denver  and  Pueblo,  and  connected  its  track  with  that  of  the 
Atchison.  Topeka  &  Santa  Fe,  in  Pue1)lo,  twelve  or  fifteen  hundred  feet 
easterly  from  the  junction  of  the  Denver  &  Rio  Grande,  and  about 
three-quarters  of  a  mile  from  the  union  depot  at  which  the  Atchison, 
Topeka  &  Santa  Fe  and  the  Denver  &  Rio  Grande  interchanged  their 
business,  and  where  each  stopped  its  trains  regularly  to  take  on  and 
let  of!"  passengers  and  receive  and  deliver  freight.  The  Denver  & 
^  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 


ATCH.,   TOP.   &   S.    F.    E.    V.   DENVER    &   NEW   OELEANS   R.        267 

New  Orleans  Company  erected,  at  its  junction  with  tlae  Atchison,  To- 
peka  &  Santa  Fe,  platforms  and  other  accommodations  for  the  inter- 
change of  business,  and  before  this  suit  was  begun  the  general  super- 
intendent of  the  Denver  &  New  Orleans  Compan^y  made  a  request  in 
writing  of  the  general  manager  of  the  Atchison,  Topeka  &  Santa  Fe, 
as  follows : 

"  That  through  bills  of  lading  be  given  via  your  line  and  ours,  and 
that  you  allow  all  freight  consigned  via  D.  &  N.  O.  R.  R.  to  be  deliv- 
ered this  company  at  point  of  junction,  and  on  such  terms  as  exist 
between  your  road  and  any  other  line  or  lines  ;  that  you  allow  your 
cars,  or  cars  of  an}'  foreign  line,  destined  for  points  reached  by  the 
D.  &  N.  O.  R.  R.,  to  be  delivered  to  this  company  and  hauled  to  desti- 
nation in  same  manner  as  interchanged  with  an}-  other  line.  That  you 
allow  tickets  to  be  placed  on  sale  between  points  on  line  of  D.  &  N.  O. 
R.  R.  and  those  on  line  of  A.  T.  &  S.  F.  R.  R.,  or  reached  by  either 
Hue  ;  that  a  system  of  through  checking  of  baggage  be  adopted  ;  that 
a  transfer  of  U.  S.  mail  be  made  at  point  of  junction.  In  matter  of 
settlements  between  the  two  companies  for  earnings  and  charges  due, 
we  will  settle  daily  on  delivery  of  freight  to  this  line  ;  for  mileage  due 
for  car  service,  and  for  amounts  due  for  tickets  interchanged,  we  agree 
to  settle  morithl}-,  or  in  an}-  other  manner  adopted  by  your  line,  or  as 
is  customary  between  raih'oads  in  such  settlements/' 

This  request  was  refused,  and  the  Atchison,  Topeka  &  Santa  Fe 
Conipany  continued  its  through  business  with  the  Denver  &  Rio 
Grande  as  before,  but  declined  to  receive  or  deliver  freight  or  pas- 
sengers at  the  junction  of  the  Denver  &  New  Orleans  road,  or  to  give 
or  take" through  bills  of  lading,  or  to  sell  or  receive  through  tickets,  or 
to  check  baggage  over  that  line.  All  passengers  or  freight  coming 
from  or  destined  for  that  line  <vere  taken  or  delivered  at  the  regular 
depot  of  the  Atchison,  Topeka  &  Santa  Fe  Company  in  Pueblo,  and 
the  prices  charged  were  according  to  the  regular  rates  to  and  from  that 
point,  which  were  more  than  the  Atchison,  Topeka  &  Santa  Fe  received 
on  a  division  of  through  rates  to  and  from  Denver  under  its  arrange- 
ment with  the  Denver  &  Rio  Grande  Company.   .   .   . 

Upon  this  state  of  facts  the  Circuit  Court  entered  a  decree  requiring 
the  Atchison,  Topeka  &  Santa  Fe  Company  to  stop  all  its  passenger 
trains  at  the  platform  built  by  the  Denver  &  New  Orleans  Company 
where  tlie  two  roads  joined,  and  to  remain  there  long  enough  to  take 
on  and  let  off  passengers  with  safety,  and  to  receive  and  deliver 
express  matter  and  the  mails.  It  also  required  the  Atchison,  Topeka 
&  Sante  Fe  Company  to  keep  an  agent  there,  to  sell  tickets,  check 
baggage,  and  bill  freight.  All  freight  trains  were  to  be  stopped  at  the 
same  place  whenever  there  was  freight  to  be  taken  on  or  delivered,  if 
proper  notice  was  given.  While  the  Atchison,  Topeka  &  Santa  Fe 
Company  was  not  required  to  issue  or  recognize  through  bills  of  lading 
embracing  the  Denver  &  New  Orleans  road  in  the  route,  or  to  sell  or 
recognize  through  tickets  of  the  same  character,  or  to  check  baggage 


268       ATCH.,   TOP.    &   S.    F.    R.    V.   DENVER   &   NEW    ORLEANS    E. 

in  connection  with  that  road,  it  was  required  to  carry  freight  and  pas- 
sengers going  to  or  coming  from  that  road  at  the  same  price  it  would 
receive  if  the  passenger  or  freight  were  carried  to  or  from  the  same 
point  upon  a  through  ticliet  or  tln'ough  bill  of  lading  issued  under  an}' 
arrangement  with  the  Denver  &  Rio  Grande  Company  or  any  other 
competitor  of  the  Denver  &  New  Orleans  Company  for  business.  In 
short,  the  decree,  as  entered,  establishes  in  detail  rules  and  regulations 
for  the  working  of  the  Atchison,  Topeka  &  Santa  Fe  and  Denver  & 
New  Orleans  roads,  in  connection  with  each  other  as  a  connecting 
through  line,  and,  in  effect,  requires  the  Atchison,  Topeka  &  Santa  Fe 
Company  to  place  the  Denver  &  New  Orleans  Company  on  an  equal 
footing  as  to  the  interchange  of  business  with  the  most  favored  of  the 
competitors  of  that  corapan}',  both  as  to  prices  and  facilities,  except  in 
respect  to  the  issue  of  through  bills  of  lading,  through  checks  for  bag- 
gage, through  tickets,  and  perhaps  the  compulsoiy  interchange  of  cars. 

From  this  decree  both  companies  appealed  ;  the  Atchison,  Topeka 
&  Santa  Fe  Compau}-  because  tlie  bill  was  not  dismissed  ;  and  the 
Denver  &  New  Orleans  Company  because  the  decree  did  not  fix  the 
rates  to  be  charged  b}'  the  Atchison,  Topeka  &  Santa  Fe  Compan}-  for 
freight  and  passengers  transported  by  it  in  connection  with  the  Denver 
&  New  Orleans,  or  make  a  specihc  division  and  ai)portionment  of 
through  rates  between  the  two  companies,  and  because  it  did  not 
require  the  issue  of  through  tickets  and  through  bills  of  lading,  and 
the  througli  checking  of  baggage. 

3Ir.  H.  C.  T/iatdter,  Mr.  Charles  E.  Gast,  Mr.  George  E.  JPeck, 
and  Mr.  William  M.  Evm'ts  for  the  Atchison,  Topeka  &  Santa  Fe 
Railroad  Company. 

Mr.  E.   T.  Wells  for  the  Denver  &  New  Orleans  Railroad  Company. 

Mr.  Chief  Justice  AVaite  delivered  the  opinion  of  the  court. ^ 
After  reciting  the  facts  in  the  foregoing  language  he  continued  : 

The  case  has  been  presented  b}'  counsel  in  two  aspects : 

1.  In  view  of  the  requirements  of  the  Constitution  of  Colorado 
alone  ;    and 

2.  In  view  of  the  constitutional  and  common  law  obligations  of  rail- 
road companies  in  Colorado  as  common  carriers. 

"We  will  first  consider  the  requirements  of  the  Constitution  ;  and 
here  it  ma}'  be  premised  that  sec.  6  of  art.  15  imposes  no  greater 
obligations  upon  the  company  than  the  common  law  would  have  im- 
posed witliout  it.  Every  common  carrier  must  carry  for  all  to  the 
extent  of  his  capacity,  without  undue  or  unreasonable  discrimination 
either  in  charges  or  facilities.  The  Constitution  has  taken  from  the 
legislature  the  power  of  abolishing  this  rule  as  applied  to  railroad 
companies. 

So  in  sec.  4  there  is  nothing  specially  important  to  the  present 
inquiry  except  the  last  sentence :  "  Every  railroad  company  shall 
have  the  right  with  its  road  to  intersect,  connect  with,  or  cross  any 
^  Part  of  the  opiuiou  is  omitted.  —  Ed. 


ATCH.,    TOP.    &   S.    F.    R.   V.    DENVER   &   XEW   ORLEANS   R.        2G'J 

other  railroad."  Railroad  companies  are  created  to  serve  the  public 
as  carriers  for  hire,  and  their  obligations  to  the  public  are  such  as  the 
law  attaches  to  that  service.  The  only  exclusively'  constitutional  ques- 
tion in  the  case  is,  therefore,  whether  the  right  of  one  railroad  corn- 
pan}'  to  connect  its  road  with  that  of  another  company,  which  has  been 
made  part  of  the  fundamental  law  of  the  State,  implies  more  than  a 
mechanical  union  of  the  tracks  of  the  roads  so  as  to  admit  of  the  con- 
venient passage  of  cars  from  one  to  the  other.  The  claim  on  the  part 
of  the  Denver  &  New  Orleans  Company  is  that  the  right  to  connect 
the  roads  includes  the  right  of  business  intercourse  between  the  two 
companies,  such  as  is  customary  on  roads  forming  a  continuous  line, 
and  that  if  the  companies  fail  or  refuse  to  agree  upon  the  terms  of 
their  intercourse  a  court  of  equity  may,  in  the  absence  of  statutory 
regulations,  determine  what  the  terms  shall  be.  Such  appears  to  have 
been  the  opinion  of  the  Circuit  Court,  and  accordingly  in  its  decree  a 
compulsory  business  connection  was  established  between  the  two  com- 
panies, and  rules  were  laid  down  for  the  government  of  their  conduct 
towards  each  other  in  this  new  relation.  In  other  words,  the  court  has 
made  an  arrangement  for  the  business  intercourse  of  these  companies 
such  as,  in  its  opinion,  they  ought  in  law  to  have  made  for  themselves. 

There  is  here  no  question  as  to  how  or  where  the  physical  connec- 
tion of  tlie  roads  shall  be  made,  for  that  has  already  been  done  at  the 
place,  and  in  the  wa}',  decided  upon  by  the  Denver  &  New  Orleans 
Company  for  itself,  and  the  Atchison,  Topeka  &  Santa  Fe  Company- 
does  not  ask  to  have  it  changed.  The  point  in  dispute  upon  this 
branch  of  the  case,  therefore,  is  whether,  under  the  Constitution  of 
Colorado,  the  Denver  &  New  Orleans  Company  has  a  constitutional 
right,  which  a  court  of  chanceiy  can  enforce  by  a  decree  for  specific 
performance,  to  form  the  same  business  connection,  and  make  the  same 
traffic  arrangement,  with  the  Atchison,  Topeka  &  Santa  Fe  Company 
as  that  companv  grants  to,  or  makes  with,  an}'  competing  company 
operating  a  connected  road. 

The  right  secured  b\'  the  Constitution  is  that  of  a  connection  of  one 
road  with  another,  and  the  language  used'  to  describe  the  grant  is 
strikingly  like  that  of  sec.  23  of  the  charter  of  the  Baltimore  &  Ohio 
Railroad  Company,  given  by  Maryland  on  the  28th  of  February,  1827, 
Laws  of  Maryland,  1826,  c.  12.*],  which  is  in  these  words: 

"  That  full  right  and  privilege  is  hereby  reserved  to  the  citizens  of 
this  State,  or  any  company  hereafter  to  be  incorporated  under  the 
authority  of  tiiis  State,  to  connect  with  the  road  hereby  provided  for, 
any  other  railroad  leading  from  the  main  route,  to  any  other  part  or 
parts  of  the  State." 

At  the  time  this  charter  was  granted  the  idea  prevailed  that  a  rail- 
road could  be  used  like  a  public  highway  by  all  who  chose  to  put  car- 
riages thereon,  subject  only  to  the  payment  of  tolls,  and  to  reasonable 
regulations  as  to  the  manner  of  doing  business,  Lal-e  Sup.  <b  Miss.  II. 
H.  Co.  V.  Uinfed  States,  93  U.  S.  442  ;  but  that  the  word  "  conuect/'  as 


270        ATCH.,    TOr,    &   S.    F.    K.    V.    DENVER   &   NEW    ORLEANS   R. 

here  used,  was  not  supposed  to  mean  an3'tliing  more  than  a  mechanical 
union  of  the  tracks  is  apparent  from  the  fact  that  when  afterwards,  on 
the  9th  of  March,  1833,  authority  was  given  the  owners  of  certain  fac- 
tories to  connect  roads  from  their  factories  with  tlie  Washington  branch 
of  the  Baltimore  &  Ohio  Company,  and  to  erect  depots  at  the  junc- 
tions, it  was  in  express  terms  made  "  the  duty  of  the  company  to  take 
from  and  deliver  at  said  depot  any  produce,  merchandise,  or  manufac- 
tures, or  other  articles  whatsoever,  which  they  (the  factory  owners) 
may  require  to  be  transported  on  said  road."  Maryland  Laws  of  1832, 
c.  175,  sec.  16.  The  charter  of  the  Baltimore  &  Ohio  Company  was 
one  of  the  earliest  ever  granted  in  the  United  States,  and  while  from 
the  beginning  it  was  common  in  most  of  the  States  to  provide  in  some 
form  by  chartei's  for  a  connection  of  one  railroad  with  another,  we 
have  not  had  our  attention  called  to  a  single  case  where,  if  more  than 
a  connection  of  tracks  was  required,  the  additional  requirement  was 
not  distinctly  stated  and  defined  by  the  legislature. 

Legislation  regarding  the  duties  of  connected  roads  because  of  their 
connection  is  to  be  found  in  man}-  of  the  States,  and  it  began  at  a  very 
early  day  in  the  history-  of  railroad  construction.  As  long  ago  as  1842 
a  general  statute  upon  the  subject  was  passed  in  Maine,  Stats,  of 
Maine,  1842,  c.  9;  and  in  1854,  c.  93,  a  tribunal  was  established  for 
determining  upon  the  "  terms  of  connection  "  and  "  the  rates  at  which 
passengers  and  merchandise  coming  from  the  one  shall  be  transported 
over  the  other,"  in  case  the  companies  themselves  failed  to  agree. 
Other  States  have  made  different  provisions,  and  as  railroads  have 
increased  in  number,  and  their  relations  have  become  more  and  more 
complicated,  statutory  regulations  have  been  more  frequently  adopted, 
and  with  greater  particularity  in  matters  of  detail.  Much  litigation 
has  grown  out  of  controversies  between  connected  roads  as  to  their 
respective  rights,  but  we  have  found  no  case  in  which,  without  legisla- 
tive regulation,  a  simple  connection  of  tracks  has  been  held  to  estab- 
lish any  contract  or  business  relation  between  the  companies.  .   .   . 

To  our  minds  it  is  clear  that  the  constitutional  right  in  Colorado  to 
connect  railroad  with  railroad  does  not  itself  imply  the  riglit  of  con- 
necting business  with  business.  The  railroad  companies  are  not  to  be 
connected,  but  their  roads.  A  connection  of  roads  may  make  a  con- 
nection in  business  convenient  and  desirable,  but  the  one  does  not 
necessarily  carry  with  it  the  other.  The  language  of  the  Constitution 
is  that  railroads  may  "  intersect,  connect  with,  or  cross"  each  other. 
This  clearly  applies  to  the  road  as  a  physical  structure,  not  to  the  cor- 
poration or  its  business. 

This  brings  us  to  the  consideration  of  the  second  branch  of  the 
case,  to  wit,  the  relative  rights  of  the  two  companies  at  common  law 
and  under  the  Constitution,  as  owners  of  connected  roads,  it  being 
conceded  that  there  are  no  statutory  regulations  applicable  to  the 
subject. 

The  Constitution  expressly  provides  : 


ATCH.,   TOP,    &   S.   F.    R.   V.    DENVER   &   NEW   ORLEANS    R.       271 

1.  That  all  shall  have  equal  rights  in  the  transportation  of  persons 
and  property  ; 

2.  That  there  shall  not  be  any  undue  or  unreasonable  discrimination 
in  charges  or  facilities ;  and 

3.  That  preferences  shall  not  be  given  in  furnishing  cars  or  motive 
power. 

It  does  not  expressly  provide  : 

1.  That  the  trains  of  one  connected  road  shall  stop  for  the  exchange 
of  business  at  the  junction  with  the  other  ;  nor 

2.  That  companies  owning  connected  roads  shall  unite  in  forming  a 
through  line  for  continuous  business,  or  haul  each  other's  cars  ;  nor 

3.  That  local  rates  on  a  through  line  shall  be  the  same  to  one  con- 
nected road  not  in  the  line  as  the  through  rates  are  to  another  which 
is  ;  nor 

4.  That  if  one  compan}'  refuses  to  agree  with  another  owning  a  con- 
nected road  to  form  a  through  line  or  to  do  a  connecting  business 
a  court  of  chancery  may  order  that  such  a  business  be  done  and  fix 
the  terms. 

The  question,  then,  is  whether  these  rights  or  any  of  them  are  im- 
plied either  at  common  law  or  from  the  Constitution. 

At  common  law,  a  carrier  is  not  bound  to  carry  except  on  his  own 
line,  and  we  think  it  quite  clear  that  if  he  contracts  to  go  beyond  he 
may,  in  the  absence  of  statutory  regulations  to  the  contrarj*,  determine 
for  himself  what  agencies  he  will  emplo}'.  His  contract  is  equivalent 
to  an  extension  of  his  line  for  the  purposes  of  the  contract,  and  if  he 
holds  himself  out  as  a  carrier  beyond  the  line,  so  that  he  may  be  required 
to  carry  in  that  way  for  all  alike,  he  maj-  nevertheless  confine  himself 
in  carrying  to  the  particular  route  he  chooses  to  use.  He  puts  himself 
in  no  worse  position,  by  extending  his  route  with  the  help  of  others, 
than  he  would  occupy  if  the  means  of  transportation  employed  were  all 
his  own.  He  certainly  ma}-  select  his  own  agencies  and  his  own  asso- 
ciates for  doing  his  own  work. 

The  Atchison,  Topeka  &  Santa  Fe  Compan}',  as  the  lessee  of  the 
Pueblo  &  Arkansas  Valley  Railroad,  has  the  statutory  right  to  estab- 
lish its  own  stations  and  to  regulate  the  time  and  manner  in  which  it 
will  carr}'  persons  and  property  and  the  price  to  be  paid  therefor.  As 
to  all  these  matters,  it  is  undoui)tedly  subject  to  the  power  of  legisla- 
tive regulation,  but  in  the  absence  of  regulation  it  owes  only  such 
duties  to  the  public,  or  to  individuals,  associations,  or  corporations,  as 
the  common  law,  or  some  custom  having  the  force  of  law,  has  estab- 
lished for  the  government  of  those  in  its  condition.  As  has  already 
been  shown,  the  Constitution  of  Colorado  gave  to  everv  railroad  com- 
pany in  the  State  the  right  to  a  mechanical  union  of  its  road  with  that 
of  any  other  company  in  the  State,  but  no  more.  The  legislature  has 
not  seen  fit  to  extend  this  right,  as  it  undoubtedly  may,  and  conse- 
quentl}'  the  Denver  &  New  Orleans  Company  comes  to  the  Atchison, 
Topeko  &  Santa  Fe  Company  just  as  an}'  other  customer  does,  and 


272         ATCH.,   TOP.    &   S.   F.    R.    V.    DENVER    &   NEW   ORLEANS   R. 

with  no  more  rights.  It  has  established  its  junction  and  provided  itself 
with  the  means  of  transacting  its  business  at  that  place,  but  as  yet  it 
has  no  legislative  authorit}'  to  compel  the  other  compan}-  to  adopt  that 
station  or  to  establish  an  agency  to  do  business  there.  So  far  as  statu- 
tory regulations  are  concerned,  if  it  wishes  to  use  the  Atchison,  To- 
peka  &  Santa  Fe  road  for  business,  it  must  go  to  the  place  where  that 
company  takes  on  and  lets  off  passengers  or  property  for  otliers.  It 
has  as  a  railroad  company  no  statutory  or  constitutional  privileges  in 
this  particular  over  other  persons,  associatious,  or  corpoi'ations.  It 
saw  fit  to  establish  its  junction  at  a  place  away  from  the  station  which 
the  Atchison,  Topeka  &  Sauta  Fe  Company  had,  in  the  exercise  of  its 
legal  discretion,  located  for  its  own  convenience  and  that  of  the  public. 
It  does  not  now  ask  to  enter  that  station  with  its  tracks  or  to  inter- 
change busiuess  at  that  place,  but  to  compel  the  Atchison,  Topeka  & 
Santa  Fe  Compan}-  to  stop  at  its  station  and  transact  a  connecting 
business  there.  No  statute  requires  that  connected  roads  shall  adopt 
joint  stations,  or  that  one  railroad  company  shall  stop  at  or  make  use 
of  the  station  of  another.  Each  company  in  the  State  has  the  legal 
right  to  locate  its  own  stations,  and  so  far  as  statutory  regulations  are 
concerned,  is  not  required  to  use  any  other. 

A  railroad  company  is  prohilnted,  both  by  the  common  law  and  by 
the  Constitution  of  Colorado,  from  discriminating  unreasonabl3'in  favor 
of  or  against  another  company  seeking  to  do  business  on  its  road  ;  but 
that  docs  not  necessarily  impl}-  that  it  must  stop  at  the  junction  of  one 
and  interchange  business  there,  because  it  has  established  joint  depot 
accommodations  and  provided  facilities  for  doing  a  connecting  business 
with  another  com[)any  at  another  place.  A  station  may  be  established 
for  the  special  accommodation  of  a  particular  customer;  but  we  have 
never  hoard  it  claimed  that  ever}'  other  customer  could,  by  a  suit  in 
equit}',  in  the  absence  of  a  statutory  or  contract  right,  compel  the  com- 
pan}^  to  establish  a  like  station  for  his  special  accommodation  at  some 
other  place.  Such  matters  are,  and  always  have  been,  proper  subjects 
for  legislative  consideration,  unless  prevented  b}'  some  charter  con- 
tract :  but,  as  a  general  rule,  remedies  for  injustice  of  that  kind  can 
only  be  obtained  from  the  legislature.  A  court  of  chancery  is  not,  an}' 
more  than  is  a  court  of  law,  clothed  with  legislative  power.  It  may 
enforce,  in  its  own  appropriate  way,  the  specific  performant»e  of  an 
existing  legal  obligation  arising  out  of  contract,  law,  or  usage,  but  it 
cannot  create  the  ot)ligation. 

In  the  present  case,  the  Atchison,  Topeka  &  Santa  Fe  and  the  Den- 
ver &  Rio  Grande  Companies  formed  their  business  connection  and 
established  their  junction  or  joint  station  long  before  the  Denver  & 
New  Orleans  road  was  built.  The  Denver  &  New  Orleans  Comi)an3' 
saw  fit  to  make  its  junction  with  the  Atcliison,  Topeka  &  Santa  Fe 
Company  at  a  different  place.  Under  these  circumstances,  to  hold 
that,  if  the  Atchison,  Topeka  &  Santa  Fe  continued  to  stop  at  its  old 
station,  after  the  Denver  &  New  Orleans  w^as  built,  a  refusal  to  stop 


ATCH.,   TOP.    &   S.    F.    R.    V.    DENVER   &    NEW   ORLEANS   R.        273 

at  the  junction  of  the  Denver  &  New  Orleans,  was  an  unreasonable 
discrimination  as  to  facilities  in  favor  of  the  Denver  &  Rio  Grande 
Company,  and  against  the  Denver  &  New  Orleans,  would  be  in  etfect 
to  declare  that  every  railroad  company  which  forces  a  connection  of 
its  road  with  that  of  another  company  has  a  right,  under  the  Constitu- 
tion or  at  the  common  law,  to  require  the  company  with  which  it  con- 
nects to  do  a  connecting  business  at  the  junction,  if  it  does  a  similar 
business  with  any  other  company  under  any  other  circumstances. 
Such,  we  think,  is  not  the  law.  It  may  be  made  so  by  the  legisla- 
tive department  of  the  government,  but  it  does  not  follow,  as  a  neces- 
sary consequence,  from  the  constitutional  right  of  a  mechanical  union 
of  tracks,  or  the  constitutional  prohibition  against  undue  or  unreason- 
able discrimination  in  facilities. 

This  necessarily  disposes  of  the  question  of  a  continuous  business, 
or  a  through  line  for  passengers  or  freight,  including  through  tickets, 
through  bills  of  lading,  through  checking  of  baggage,  and  the  like. 
Such  a  business  does  not  necessarily  follow  from  a  connection  of 
tracks.  The  connection  may  enable  the  companies  to  do  such  a  busi- 
ness conveniently  when  it  is  established,  but  it  does  not  of  itself  estab- 
lish the  business.  The  legislature  cannot  take  away  the  right  to  a 
physical  union  of  two  roads,  but  whether  a  connecting  business  shall 
be  done  over  them  after  the  union  is  made  depends  on  legislative  regu- 
lation, or  contract  obligation.  An  interchange  of  cars,  or  the  hauling 
by  one  company  of  the  cars  of  the  other,  implies  a  stop  at  the  junction 
to  make  the  exchange  or  to  take  the  cars.  If  there  need  be  no  stop, 
there  need  be  no  exchange  or  taking  on  of  cars. 

The  onlj'  remaining  questions  are  as  to  the  obligation  of  the  Atchi- 
son, Topeka  &  Santa  Fe  Company  to  carry  for  the  Denver  &  New 
Orleans  when  passengers  go  to  or  freight  is  delivered  at  the  regular 
stations,  and  the  prices  to  be  charged.  As  to  the  obligation  to  carry, 
there  is  no  dispute,  and  we  do  not  understand  it  to  be  claimed  that  car- 
riage has  ever  been  refused  when  appHed  for  at  the  proper  place.  The 
controversy,  and  the  only  controversy,  is  about  the  place  and  the  price. 

That  the  price  must  be  reasonable  is  conceded,  and  it  is  no  doubt 
true  that  in  determining  what  is  reasonable  the  prices  charged  for  busi- 
ness coming  from  or  going  to  other  roads  connecting  at  Pueblo  may  be 
taken  into  consideration.  But  the  relation  of  the  Denver  &  New 
Orleans  Company  to  the  Atchison,  Topeka  &  Santa  Fe  is  that  of  a 
Pueblo  customer,  and  it  does  not  necessarily  follow  that  the  price 
which  the  Atchison,  Topeka  &  Santa  Fe  gets  for  transportation  to  and 
from  Pueblo,  on  a  division  of  through  rates  among  the  component  com- 
panies of  a  through  line  to  Denver,  must  settle  the  Pueblo  local  rates. 
It  may  be  that  the  local  rates  to  and  from  Pueblo  are  too  high,  and 
that  they  ought  to  be  reduced,  but  that  is  an  entirely  different  question 
from  a  division  of  through  rates.  There  is  no  complaint  of  a  discrim- 
ination against  the  Denver  &  New  Orleans  Company  in  respect  to  the 
regular  Pueblo  rates  ;  neither  is  there  anything  except  the  through 

18 


274         ATCII.,   TOP.   &   S.    F.   R.    V.   DENVER   &   XEW   ORLEANS   R. 

rates  to  show  that  the  local  rates  are  too  high.  The  bill  does  not  seek 
to  reduce  the  local  rates,  but  only  to  get  this  company  put  into  the 
same  position  as  the  Denver  &,  Rio  Grande  on  a  division  of  through 
rates.  This  cannot  be  done  until  it  is  shown  that  the  relative  situa- 
tions of  the  two  companies  with  the  Atchison,  Topeka  &  Santa  Fc-, 
both  as  to  the  kintl  of  service  and  as  to  the  conditions  under  which  it 
is  to  be  performed,  are  substantial!}-  the  same,  so  that  what  is  reason- 
able for  one  must  necessarily  be  reasonable  for  the  other.  When  a 
business  connection  shall  be  established  between  the  Denver  &  New 
Orleans  Company  and  the  Atchison,  Topeka  &  Santa  Fe  at  their  junc- 
tion, and  a  continuous  line  formed,  different  questions  may  arise  ;  but 
so  long  as  the  situation  of  the  parties  continues  as  it  is  now,  we  cannot 
say  that,  as  a  matter  of  law,  the  prices  charged  by  the  Atchison,  To- 
peka &  Santa  Fe,  for  the  transportation  of  persons  and  property 
coming  from  or  going  to  the  Denver  &  New  Orleans,  must  necessarily 
be  the  same  as  are  fixed  for  the  continuous  line  over  the  DenA'cr  & 
Rio  Grande.   .   .   . 

All  the  American  cases  to  which  our  attention  has  been  called  b}' 
counsel  relate  either  to  what  amounts  to  undue  discrimination  between 
the  customers  of  a  railroad  company,  or  to  the  power  of  a  court  of 
chancery  to  interfere,  if  there  is  such  a  discrimination.  None  of  them 
hold  that,  in  the  absence  of  statutory  direction,  or  a  specific  contract, 
a  company  having  the  power  to  locate  its  own  stopping-places  can  be 
requiied  by  a  court  of  equity  to  stop  at  another  railroad  junction  and 
interchange  business,  or  that  it  must  under  all  circumstances  give  one 
connecting  road  the  same  facilities  and  the  same  rates  that  it  does  to 
another  with  which  it  has  entered  into  special  contract  relations  for  a 
continuous  through  line  and  arranged  facilities  accordingly.  The  cases 
are  all  instructive  in  their  analogies,  but  their  facts  are  different  from 
those  we  have  now  to  consider. 

We  have  not  referred  specially  to  the  tripartite  agreement  or  its  pro- 
visions, because,  in  our  opinion,  it  has  nothing  to  do  with  this  case  as 
it  is  now  presented.  The  question  here  is  whether  the  Denver  &  New 
Orleans  Company  would  have  the  right  to  the  relief  it  asks  if  there 
were  no  such  contract,  not  whether  the  contract,  if  it  exists,  will  be  a 
bar  to  such  a  right.  The  real  question  in  the  case,  as  it  now  comes 
before  us.  is  whether  the  relief  required  is  legislative  in  its  character 
or  judicial.  We  think  it  is  legislative,  and  that  upon  the  existing  facts  \ 
a  court  of  chancery  can  afford  no  remed}'. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  cause  remanded 
with  direction  to  Disraiss  the  bill  without  prejudice. 


ILWACO   K.   &  N.   CO.   V.   OKEGOX   SHOKT   LINE   &   UTAH   N.   K.      275 


ILWACO  RAILWAY  &  NAVIGATION  COMPANY  v.  OREGON 
SHORT  LINE  &  UTAH  NORTHERN  RAILWAY. 

Circuit  Court  of  Appeals,  Ninth  Circuit,  1893. 

[57  Fed.  673.] 

McKenxa,  Circuit  Judge. ^  The  plaintiff  couteuds  that  defendant, 
by  preventing  it  from  lauding  its  boats  at  a  wharf  owned  and  used 
by  defendant,  discriminates  against  it,  contrar}'  to  section  3  of  the 
Interstate  Commerce  Act. 

The  facts  are  as  follows :  — 

That  prior  to  the  month  of  August,  1888,  the  defendant  was 
named  the  Ilwaco  Steam  Navigation  Company,  but  in  that  month  it 
filed  supplemental  articles  of  incorporation,  changing  its  name  to 
Ilwaco  Railwa}^  &  Navigation  Compau}',  and  proceeded  to  construct 
a  line  of  railway  from  a  point  at  or  near  the  town  of  Ilwaco  on  the 
Pacific  Ocean,  in  the  State  of  Washington,  to  a  point  on  the  navi- 
gable waters  of  Shoal  Water  Bay,  in  Pacific  County.  That  the 
construction  of  said  railway  was  commenced  before,  but  completed 
after,  the  filing  of  said  supplemental  articles.  That  prior  to  the 
construction  of  said  railroad  line  the  defendant  owned  and  operated 
a  line  of  steamboats  between  the  town  of  Astoria,  Or.,  and  the  town 
of  Ilwaco.  That  the  shores  of  the  Pacific  Ocean  in  that  vicinity  were 
popular  summer  resorts  during  the  months  of  July  and  August  and 
the  first  week  of  September.  That  prior  to  1888  the  Oregon  Railway 
&  Navigation  Company  owned  the  boats  and  line  between  Astoria 
and  Portland,  Or.,  which  plaintiff  now  owns,  and  carried  passengers 
from  Portland  to  Astoria,  which  were  then  transferred  to  plaintiff's 
boats,  and  carried  to  Ilwaco,  from  whence  they  went  to  the  ocean 
beach  in  wagons.  That  in  the  summer  season  of  the  3'ears  1888, 
1889,  1890,  and  1891  the  Oregon  Railway  &  Navigation  Company 
asked  and  obtained  permission  to  land  its  passengers  on  the  wharf 
at  Ilwaco,  paying  a  compensation  therefor.  That  complainant  only 
ran  its  boats  during  said  summer  months,  and  only  while  people 
were  travelling  to  said  summer  resorts.  Said  town  of  Portland,  Or., 
is  situated  on  the  Willamette  River,  about  100  miles  inland,  easterly 
from  the  said  city  of  Astoria,  which  latter  city  is  situated  on  the  left 
bank  of  the  Columbia  River,  and  about  12  miles  inland  from  the 
ocean;  and  the  town  of  Ilwaco  is  situated  on  the  right  bank  of  the 
Columbia  River,  at  a  part  thereof  known  as  "Baker's  Bay,"  and 
about  15  miles  distant,  in  a  northwesterly  direction,  from  said  city 
of  Astoria.  That  in  the  year  1892  complainant  desired  the  same 
privileges,  but  respondent  refused.   .   .   . 

The  defendant  company  was  organized  for  the  purpose  of  construct- 
ing a  transportation  route  from  Astoria,  Or.,  to  Shoal  Water  Bay, 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


276      IL^-ACO   K.    &   N.    CO.    V.    OREGON    SHORT   LINE    &   UTAH   N.    R. 

"Wash.  Its  means  of  transportation  are  steamboats  and  a  railroad. 
Tlie  wharf  at  Ilwaco  makes  the  connection  between  them,  and  the 
continuity  of  the  route.  The  act  contemplates,  we  think,  indepen- 
dent carriers,  capable  of  mutual  relations,  and  capable  of  being 
objects  of  favor  or  prejudice.  There  must  be  at  least  two  other 
carriers  besides  the  offending  one.  For  a  carrier  to  prefer  itself  in  its 
own  proper  business  is  not  the  discrimination  which  is  condemned. 

We  do  not  think  that  the  cases  cited  by  appellee  militate  with 
these  views,  nor  do  they  justify  a  railroad  company  combining  with 
its  proper  business  a  business  not  cognate  to  it,  and  discriminating 
in  favor  of  itself,  aa  it  might  in  counsel's  illustration  of  a  combina- 
tion of  a  railroad  company  with  the  Standard  Oil  Company,  or  as 
illustrated  in  the  cases  of  Baxendale  v.  Great  Western  Ry.  Co.,  1 
Railway  &  Canal  Traffic  Cas.  202;  Same  v.  London  &  S.  W.  Ry.  Co., 
Id.  231;  and  Parkinson  v.  Railway'  Co.,  Id.  280.  In  all  these 
cases  the  railroad  company  attempted  to  discriminate  in  favor  of 
itself  as  carrier,  separate  from  its  capacity  as  a  railwaj'  carrier.  We 
find  no  difficulty  of  concurring  in  these  cases,  and  distinguishing 
them  from  the  case  at  bar.  It  was  not  to  engage  in  the  business  of 
drayman,  as  Cockburn,  C.  J.,  indicates  in  the  first  case,  that  great 
powers  have  been  given  to  railwa}'  companies,  and,  if  permitted  to 
be  so  used,  might  indeed  be  converted  into  a  means  of  very  grievous 
oppression.  The  principle  of  these  cases  does  not  extend  to  boats 
owned  by  railroads,  as  a  part  of  a  continuous  line.  Nor  do  we 
think  the  case,  Indian  River  Steamboat  Co.  v.  East  Coast  Transp. 
Co.  (Fla.),  10  South.  Rep.  480,  sustains  complainant.  It  was  a  case 
of  discrimination.  The  action  was  between  two  competing  steam- 
boat companies,  in  favor  of  one  of  which  a  railroad  company  had 
discriminated  by  leasing  its  wharf.  Both  companies  were  indepen- 
dent of  the  railroad,  and  both  connecting  lines  with  it.  But  the 
court  recognized  the  right  of  the  railroad  company  and  the  Indian 
River  Company  to  build  and  maintain  a  wharf,  as  incidental  to  their 
business,  saying:  "  If  either  company  should  erect  a  dock  or  wharf 
for  its  private  use,  we  know  of  no  law  to  prohibit  it."  Page  4i>2. 
The  steamboats  were  competing  lines,  and  the  statutes  of  Florida 
regulating  railroads  provided  that  no  common  carriers  subject  to  the 
provisions  should  "  make  any  unjust  discrimination  in  the  receiving 
of  fi'eight  from  or  the  delivery  of  freight  to  any  competing  lines  of 
steamboats  in  this  State."  The  decision,  therefore,  was  sustained  by 
the  laws  of  the  State.  The  reasoning  of  the  court,  beyond  this,  seems 
to  be  in  conflict  with  the  Express  Cases  decided  by  the  Supreme 
Court  of  the  United  States.      117  U.  S.  29. 

It  is  not  clear  what  complainant  claims  from  the  second  sub- 
division of  section  3,  besides  wiiat  it  claims  from  the  first  subdivis' 
ion.     The  second  subdivision  is  as  follows:  — 

''  Every  common  carrier  subject  to  the  provisions  of  tliis  act  shall, 
according  to  tlieir  respective  powers,   afford  all  reasonable,  proper, 


LITTLE  ROCK  &  xMEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 


07' 


and  equal  facilities  for  the  interchange  of  traffic  between  their  re- 
spective lines,  and  for  the  receiving,  forwarding,  and  delivering  of 
passengers  and  property  to  and  from  their  several  lines  and  those 
connecting  therewith,  and  shall  not  discriminate  in  their  rates  and 
charges  between  such  connecting  lines;  but  this  shall  not  be  construed 
as  requiring  any  such  common  carrier  to  give  the  use  of  its  tracks  or 
terminal  facilities  to  another  carrier  engaged  in  like  business." 

The  contention  of  complainant  is  not  that  defendant's  facilities 
are  inadequate,  but  that  it  is  excluded  from  them.  The  exclusion, 
however,  only  consists  in  the  prevention  of  the  landing  of  its  boats 
at  defendant's  wharf.  We  have  probably  said  enough  to  indicate  our 
views  of  this,  but  we  may  add  that  the  wharf  does  not  seem  to  be  a 
public  station.  It  is  a  convenience,  only,  in  connecting  its  railroads 
and  boats;  the  general  station  being  at  Ilwaco,  where  ample  facili- 
ties exist. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings. 


LITTLE   ROCK   &   MEMPHIS   RAILROAD   v.    ST.    LOUIS 
SOUTHWESTERN   RAILWAY. 

Circuit  Court  of  Appeals,  Eighth  Circuit,  1894. 

[63  Fed.  775.] 

Thayer,  Circuit  Judge,  delivered  the  opinion  of  the  court. 

It  will  be  observed  that  the  sole  question  in  the  cases  filed  against 
the  St.  Louis,  Iron  Mountain,  &  Southern  Railway  Company  concerns 
the  right  of  that  company  to  require  the  prepayment  of  freight 
charges  on  all  property  tendered  to  it  for  transportation  at  Little 
Rock  by  the  Little  Rock  &  Memphis  Railroad  Company,  while  it 
pursues  a  different  practice  with  respect  to  freight  received  from  other 
shippers  at  that  station.  At  common  law  a  railroad  corporation 
has  an  undoubted  right  to  require  the  prepayment  of  freight  charges 
by  all  its  customers,  or  some  of  them,  as  it  may  think  best.  It  has 
the  same  right  as  any  other  individual  or  corporation  to  exact  pay- 
ment for  a  service  before  it  is  rendered,  or  to  extend  credit.  Oregon 
Short  Line  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co..  51  Fed.  4G5, 
472.  Usually,  no  doubt,  railroad  companies  find  it  to  their  interest, 
and  most  convenient,  to  collect  charges  from  the  consignee;  but  we 
cannot  doubt  their  right  to  demand  a  reasonable  compensation  in 
advance  for  a  proposed  service,  if  they  see  fit  to  demand  it.  This 
common  law  right  of  requiring  payment  in  advance  of  some  customers, 
and  of  extending  credit  to  others,  has  not  been  taken  away  by  the 
Interstate  Commerce  Law,  unless  it  is  taken  away  indirectly  by  the 
inhibition  contained  in  the  third  section  of  the  act,  which  declares 
that  an  interstate  carrier  shall  not  "  subject  any  particular  person, 


278      LITTLE  KOCK  &  ME:\rPITIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

company,  corporation,  or  locality-  ...  to  any  undue  or  unreasonable 
.  .  .  disadvantage  in  any  respect  whatever."  This  prohibition  is 
very  broad,  it  is  true,  but  it  is  materiall}'  qualified  and  restricted  by 
the  words  "  undue  or  unreasonable."  One  person  or  corporation  may 
be  lawfully  subjected  to  some  disadvantage  in  comparison  with  others, 
provided  it  is  not  an  undue  or  unreasonable  disadvantage.  In  view 
of  the  fact  that  all  persons  and  corporations  are  entitled  at' common 
law  to  determine  for  themselves,  and  on  considerations  that  are  satis- 
factory to  themselves,  for  whom  they  will  render  services  on  credit, 
we  are  not  prepared  to  hold  that  an  interstate  carrier  subjects  another 
carrier  to  an  unreasonable  or  undue  disadvantage  because  it  exacts  of 
that  carrier  the  prepayment  of  freight  on  all  property  received  from 
it  at  a  given  station,  while  it  does  not  require  charges  to  be  paid  in 
advance  on  freight  received  from  other  individuals  and  corporations 
at  such  station.  So  far  as  we  are  aware,  no  complaint  had  been  made 
of  abuses  of  this  character  at  the  time  the  Interstate  Commerce  Law 
was  enacted,  and  it  may  be  inferred  that  the  particular  wrong  com- 
plained of  was  not  within  the  special  contemplation  of  Congress. 
This  being  so,  the  general  words  of  the  statute  ought  not  to  be  given 
a  scope  which  will  deprive  the  defendant  company  of  an  undoubted 
common  law  right,  which  all  other  individuals  and  corporations  are 
still  privileged  to  exercise,  and  ordinarily  do  exercise.  It  is  most 
probable  that  self-interest  —  the  natural  desire  of  all  carriers  to  secure 
as  much  patronage  as  possible  —  will  prevent  this  species  of  dis- 
crimination from  becoming  a  public  grievance  so  far  as  individual 
shippers  are  concerned;  and  it  is  desirable  that  the  courts  should 
interfere  as  little  as  possible  with  those  business  rivalries  existing 
between  railroad  corporations  themselves,  which  are  not  productive 
of  any  serious  inconvenience  to  shippers.  We  think,  therefore,  that 
no  error  was  committed  in  entering  the  judgment  and  decree  in  favor 
of  the  St.  Louis,  Iron  Mountain,  &  Southern  Railway  Company. 

The  complaint  preferred  against  the  other  companies,  to  wit,  the 
St.  Louis  Southwestern  and  the  Little  Rock  &  Ft.  Smith  Railway 
Companies,  is  somewhat  different.  It  consists  in  the  alleged  refusal 
of  those  companies,  —  first,  to  honor  through  tickets  and  through 
bills  of  lading  issued  by  the  complainant  company,  or  to  enter  into 
arrangements  with  it  for  through  billing  or  through  rating;  and,  sec- 
ondly, in  the  alleged  refusal  of  these  companies  to  accept  loaded  cars 
coming  from  the  Little  Rock  &  Memphis  Railroad,  and  in  their 
action  in  requiring  freight  to  be  rebilled  and  reloaded  at  the  two 
connecting  points,   to  wit,   Brinkley  and  Little  Rock. 

Before  discussing  the  precise  issue  which  arises  upon  this  record  it 
will  be  well  to  restate  one  or  two  propositions  that  are  supported  by 
high  authority  as  well  as  persuasive  reasons,  and  which  do  not  seem 
to  be  seriously  controverted  even  by  the  complainant's  counsel.  In 
the  first  place,  the  interstate  commerce  law  does  not  require  an  inter- 
state carrier  to  treat  all  other  connecting  carriers  in  precisely  the 


LITTLE  ROCK  &  MEMPHIS  E.  V.  ST.  LOUIS  SOUTHWESTERN  R.       279 

same  manner,  without  reference  to  its  own  interests.  Some  play  is 
given  by  the  act  to  self-interest.  The  inhibitions  of  the  third  sec- 
tion of  the  law,  against  giving  preferences  or  advantages,  are  aimed 
at  those  which  are  "undue  or  unreasonable";  and  even  that  clause 
which  requires  carriers  "to  afford  all  reasonable,  proper,  and  equal 
facilities  for  the  interchange  of  traffic "  does  not  require  that  such 
"equal  facilities"  shall  be  afforded  under  dissimilar  circumstances 
and  conditions.  Moreover,  the  direction  "to  afford  equal  facilities 
for  an  interchange  of  traffic  "  is  contr<jlled  and  limited  by  the  proviso 
that  this  clause  "shall  not  be  construed  as  requiring  a  carrier  to  give 
the  use  of  its  tracks  or  terminal  facilities  to  another  carrier."  Ken- 
tucky &  I.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.,  37  Fed.  571;  Ore- 
gon Short  Line  &  U=  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.,  51  Fed. 
465,  473.  In  the  second  place,  it  has  been  held  that  neither  by  the 
common  law  nor  by  the  interstate  commerce  law  have  the  national 
courts  been  vested  with  jurisdiction  to  compel  interstate  carriers  to 
enter  into  arrangements  or  agreements  with  each  other  for  the  through 
billing  of  freight,  and  for  joint  through  rates.  Agreements  of  this 
nature,  it  is  said,  under  existing  laws,  depend  upon  the  voluntary 
action  of  the  parties,  and  cannot  be  enforced  by  judicial  proceedings 
without  additional  legislation.  Little  Rock  &  M.  R.  Co.  v.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R.  1,  16,  17; 
Little  Rock  &  M.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  41  Fed. 
559,  and  cases  there  cited  by  Judge  Caldwell.  Furthermore,  it  has 
been  ruled  by  Mi*.  Justice  Field  in  the  case  of  the  Oregon  Short  Line 
&  U.  N.  Ry.  Co.  V.  Northern  Pac.  R.  Co.,  51  Fed.  465,  474,  that  the 
third  section  of  the  Interstate  Commerce  Act  does  not  require  an 
interstate  carrier  to  receive  freight  in  the  cars  in  which  it  is  tendered 
by  a  connecting  carrier,  and  to  transport  it  in  such  cars,  paying  a 
mileage  rate  thereon,  when  it  has  cars  of  its  own  that  are  available 
for  the  service,  and  the  freight  will  not  be  injured  by  transfer.  It 
should  be  remarked  in  this  connection  that  the  bills  on  file  in  the 
present  cases,  as  well  as  the  petitions  in  the  law  cases,  fail  to  dis- 
close whether  the  offending  companies  have  refused  to  receive  freight 
in  the  cars  in  which  it  was  tendered  to  them,  even  when  it  would 
injure  the  freight  to  transfer  it,  or  when  they  had  no  cars  of  their 
own  that  were  immediately  available  to  forward  it  to  its  destination. 
Neither  do  the  bills  or  the  petitions  disclose  whether,  in  tendering 
freight  in  cars  to  be  forwarded,  the  complainant  company  demanded 
the  payment  of  the  usual  wheelage  on  the  cars,  or  tendered  the  use  of 
the  same  free,  for  the  purpose  of  forwarding  the  freight  to  its  desti- 
nation. The  allegations  of  a  refusal  to  receive  freight  in  cars  are 
exceedingly  general,  and  convey  no  information  on  either  of  the 
points  last  mentioned. 

As  we  have  before  remarked,  the  several  propositions  above  stated 
do  not  seem  to  be  seriously  questioned.  It  is  urged,  however,  in 
substance,  that  although  the  court  may  be  powerless  to  make  and 


280      LITTLE  ROCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

enforce  agreements  between  carriers  for  through  billing  and  through 
rating,  and  for  the  use  of  each  other's  cars,  tracks,  and  terminal 
facilities,  yet  that  when  a  carrier,  of  its  own  volition,  enters  into  an 
agreement  of  that  nature  with  another  connecting  carrier,  the  law 
commands  it  to  extend  "  equal  facilities  "  to  all  other  connecting 
carriers,  if  the  ph^'sical  connection  is  made  at  or  about  the  same 
place,  and  the  physical  facilities  for  an  interchange  of  traflic  are  the 
same,  and  that  this  latter  duty  the  courts  may  and  should  enforce. 
It  will  be  observed  that  the  proposition  contended  for,  if  sound,  will 
enable  the  courts  to  do  indirectly  what  it  is  conceded  they  cannot  do 
directly.  It  authorizes  them  to  put  in  force  between  two  carriers  an 
arrangement  for  an  interchange  of  traffic  that  may  be  of  great  linau- 
cial  importance  to  both,  which  could  neither  be  established  uor  en- 
forced by  judicial  decree,  except  for  the  fact  that  one  of  the  parties 
had  previously  seen  fit  to  make  a  similar  arrangement  with  some 
other  connecting  carrier.  It  may  be,  also,  that  the  arrangement  thus 
forced  upon  the  carrier  would  be  one  in  which  the  public  at  large 
have  no  particular  concern,  because  the  equal  facilities  demanded  by 
the  complainant  carrier  would  be  of  no  material  advantage  to  the 
general  public,  and  would  only  be  a  benefit  to  the  complainant. 

Another  necessai-y  result  of  the  doctrine  contended  for  is  that  it 
deprives  railway  carriers,  in  a  great  measure,  of  the  management  and 
control  of  their  own  propert}',  by  destroying  their  right  to  determine 
for  themselves  what  contracts  and  traffic  arrangements  with  connect- 
ing carriers  are  desirable  and  what  are  undesirable.  There  ought  to 
be  a  clear  authority  found  in  the  statute  for  depriving  a  carrier  of 
this  important  right  before  the  authority  is  exercised,  for,  when 
questions  of  that  nature  have  to  be  solved,  a  great  variety  of  com- 
plex considerations  will  present  themselves,  some  of  which  can 
neither  be  foreseen  nor  stated.  A  railroad  having  equal  facilities  at 
a  given  point  for  forming  a  physical  connection  with  a  number  of 
connecting  carriers  might  find  it  exceedingly  beneficial  to  enter  into 
an  arrangement  with  one  of  them,  having  a  long  line  and  important 
connections,  for  through  billing  and  rating,  and  for  the  use  of  each 
other's  cars  and  terminal  facilities,  while  it  would  find  it  exceedingly 
undesirable  and  unprofitable  to  enter  into  a  similar  arrangement  with 
a  shorter  road,  which  could  offer  nothing  in  returu.  Or  the  case 
might  be  exactly  the  reverse.  The  shorter,  and  at  the  time  the  less 
important  road,  might  be  able  to  present  sound  business  reasons 
which  would  make  an  arrangement  with  it,  of  the  kind  above  indi- 
cated, more  desirable  than  with  the  longer  line.  Furthermore,  if  it 
be  the  law  that  an  arrangement  for  through  billing  and  rating  with 
one  carrier  necessitates  a  like  arrangement  with  others,  this  might 
be  a  controlling  influence  in  determining  a  railway  company  to  refuse 
to  enter  into  such  an  arrangement  with  any  connecting  carrier.  In 
view  of  these  considerations,  we  are  unable  to  adopt  a  construction 
of  the  Interstate  Commerce  Act  which  will  practically  compel  a  car- 


LITTLE  EOCK  &  :MEMPHI3  R.  V.  ST.  LOUIS  SOUTHWESTERy  R.      281 

rier,  when  it  enters  into  an  arrangement  with  one  carrier  for  through 
billing  and  rating  aud  for  the  use  of  its  tracks  and  terminals,  to 
make  the  same  arrangement  with  all  other  connecting  carriers,  if  the 
physical  facilities  for  an  interchange  of  traffic  are  the  same,  and  to 
do  this  without  reference  to  the  question  whether  the  enforced 
arrangement  is  or  is  not  of  any  material  advantage  to  the  public. 

In  two  of  the  cases  heretofore  cited  (Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  X.  R.  Co.,  and  Oregon  Short  Line  &  U.  N.  Ry.  Co.  v. 
Northern  Pac.  R.  Co.),  it  was  held  that  the  charge  of  undue  or  unrea- 
sonable discrimination  cannot  be  predicated  on  the  fact  that  a  rail- 
road company  allows  one  connecting  carrier  to  make  a  certain  use  of 
its  tracks  or  terminals,  which  it  does  not  concede  to  another.  This 
conclusion  was  reached  as  the  necessary  result  of  the  final  clause  of 
the  third  section  of  the  Interstate  Commerce  Law,  above  quoted,  to 
the  effect  that  the  second  paragraph  of  the  third  section  shall  not  be 
so  construed  as  to  require  a  carrier  to  give  the  use  of  its  tracks  or 
terminals  to  another  company.  Railroads  are  thus  left  by  the  com- 
merce act  to  exercise  practically  as  full  control  over  their  tracks  and 
terminals  with  reference  to  other  carriers  as  they  exercised  at  com- 
mon law.  The  language  of  Mr.  Justice  Field  in  that  behalf  was 
as  follows :  — 

"  It  follows  from  this  .  .  .  that  a  common  carrier  is  left  free  to 
enter  into  arrangements  for  the  use  of  its  tracks  or  terminal  facili- 
ties, with  one  or  more  connecting  lines,  without  subjecting  itself  to 
the  charge  of  giving  undue  or  unreasonable  preferences  or  advan- 
tages to  such  lines,  or  of  unlawfully  discriminating  against  other  car- 
riers. In  making  arrangements  for  such  use  by  other  companies,  a 
common  carrier  will  be  governed  by  considerations  of  what  is  best 
for  its  own  interests.  The  act  does  not  purport  to  divest  the  railway 
carrier  of  its  exclusive  right  to  control  its  own  affairs,  except  in  the 
specific  particulars  indicated."     51  Fed.  -474,  475. 

Furthermore,  it  is  the  settled  consti'uction  of  the  act,  as  we  have 
before  remarked,  that  it  does  not  make  it  obligatory  upon  connecting 
carriers  to  enter  into  traffic  arrangements  for  through  billing  and  rat- 
ing either  as  to  passenger  or  freight  traffic.  This  conclusion  has 
been  reached  by  all  of  the  tribunals  who  have  had  occasion  to  con- 
sider the  subject,  aud  it  is  based  on  the  fact  that,  in  enacting  the 
commerce  act,  Congress  did  not  see  fit  to  adopt  that  provision  of  the 
English  Railway  and  Canal  Traffic  Act.  passed  in  1873.  which  ex- 
pressly empowered  the  English  commissioners  to  compel  connecting 
carriers  to  put  in  force  arrangements  for  through  billing  and  through 
rating  when  they  deemed  it  to  the  interest  of  the  public  that  such 
arrangements  should  be  made.  Little  Rock  &  M.  R.  Co.  '.-.  East 
Tennessee,  V.  &  G.  R.  Co.,  3  Interst.  Commerce  Com.  R..  1,  9,  10; 
Kentucky  &  I.  Bridge  Co.  r.  Louisville  &  N.  R.  Co.,  37  Fed.  567, 
630,  631.  See  also  the  second  annual  report  of  the  Interstate  Com- 
merce Commission  (2  Interst.  Commerce  Com.  R.,  510,  511).     In  the 


282      LITTLE  KOCK  &  MEMPHIS  R.  V.  ST.  LOUIS  SOUTHWESTERN  R. 

light  of  these  adjudications,  we  are  compelled  to  conclude  that,  if  the 
charge  of  an  unreasonable  discrimination  cannot  be  successfully 
predicated  on  the  ground  that  a  railway  company  makes  an  arrange- 
ment with  one  connecting  carrier  for  the  use  of  its  tracks  and  termi- 
nals, which  it  refuses  to  make  with  another  although  the  physical 
facilities  for  an  interchange  of  tratiic  are  the  same,  then  the  charge 
of  discrimination  cannot  be  predicated  on  the  ground  that  it  makes 
an  arrangement  for  through  billing  and  rating  with  one  carrier,  and 
does  not  make  it  with  another.  The  Interstate  Commerce  Act  does 
not,  it  seems,  at  present,  make  it  obligatory  on  carriers  to  make 
arrangements  of  either  sort,  and  does  not  give  the  commission  power 
to  compel  such  arrangements,  but  leaves  connecting  carriers,  as  at 
common  law,  to  determine  for  themselves  when  such  arrangements 
are  desirable,  and  when  undesirable.  Moreover,  arrangements  for 
through  billing  and  rating  will,  as  a  general  rule,  necessarily  involve 
an  agreement  for  the  use,  to  some  extent,  of  each  other's  terminals 
and  tracks;  and,  by  the  express  language  of  the  statute,  such  use 
cannot  be  enforced  without  the  consent  of  the  owner.  We  are  un- 
willing, therefore,  as  the  law  now  stands,  to  compel  the  defendant 
companies  to  afford  the  facilities  which  the  complainant  demands. 

We  are  also  forced  to  conclude  that  if  the  public  interest  requires 
that  interstate  carriers  shall  be  compelled  to  put  in  force  arrange- 
ments for  through  billing  and  rating,  and  for  the  establishment  of 
joint  through  lines,  the  statute  should  be  made  more  explicit,  and 
that  the  commission  should  be  empowered  to  prescribe  the  terms  of 
such  arrangements  upon  a  comprehensive  view  of  the  circumstances 
of  each  particular  case. 

Some  allusion  was  made  in  the  argument  to  a  provision  found  in 
the  constitution  of  the  State  df  Arkansas  (article  17,  §  1),  as  hav- 
ing some  bearing  on  the  questions  discussed  in  these  cases;  but  as 
the  bills  and  petitions  filed  are  plainly  founded  on  the  Interstate 
Commerce  Law,  and  thus  involve  a  federal  question  arising  under 
that  act,  and  as  there  is  no  jurisdiction  arising  from  diverse  citizen- 
ship, we  have  not  felt  called  upon  to  consider  or  decide  the  proposi- 
tion founded  upon  the  constitution  of  the  State.  In  view  of  what 
has  been  said,  the  several  decrees  and  judgments  are  hereby  affirmed.^ 

1  Compare :  Lotsperch  v.  Central  E.  R.  Co.,  73  Ala.  306  ;  Snow  v.  Indiana  Co., 
109  Ind.  422;  Duubar  v.  R.  R.  Co.,  36  S.  C.  110.  — Ed. 


SKINNER   V.    UPSHAW.  283 


Section  III.    For  Reasonable  Coivipensation. 

ANONYMOUS. 

Common   Pleas,  1494. 

[Y.B.io  H.  8,  pi.  u.] 

HussEY,  C.  J.,  said  that  a  victualler  shall  be  compelled  to  sell  his 
victual  if  the  vendee  has  tendered  him  ready  payment,  otherwise  not. 
Quod  Brian,  C.  J.,  affirmavit} 


BASTARD  V.  BASTARD. 
King's  Bench,  1679. 

[2  Shoiver,  81.] 

Case  against  the  defendant  as  a  common  carrier,  for  a  box  delivered 
to  him  to  be  carried  to  B.,  and  lost  by  negligence. 

Williams  moved  in  arrest  of  judgment,  because  there  was  no  partic- 
ular sum  mentioned  to  be  paid  or  promised  for  hire,  but  onl\'  /jj'o  mer- 
cede  ratlonabili. 

Resolved  well  enough,  and  judgment  given  for  the  plaintiff;  for  per- 
haps there  was  no  particular  agreement,  and  then  the  carrier  might  have 
a  quantum  ineridt  for  his  hire,  and  he  is  therefore  chargeable  for  the 
loss  of  the  goods  in  the  one  case  as  the  other. '^ 


SKINNER  V.  UPSHAW. 
Nisi  Prius,    1702. 

[2  Ld.  Rayvi,  752.] 

The  plaintiff  brought  an  action  of  trover  against  the  defendant,  being 
a  common  carrier,  for  goods  delivered  to  him  to  carry,  &c.  Upon  not 
guilty  pleaded,  the  defendant  gave  in  evidence,  that  he  offered  to  de- 
liver the  goods  to  the  plaintiff,  if  he  would  pay  him  his  hire  ;  but  that 
the  plaintiff  refused,  &c.,  and  therefore  he  retained  them.     And  it  was 

1  Compare:  Lewis  v.  New  York  Central,  49  Barb.  330.  —  Ed. 

2  Compare:  Harvey  v.  Grand  Trunk  Co.,  2  Hask.  124;  Louisville  Co.  v.  Wilson, 
119  Ind.  352  ;  Kellerman  v.  Kansas  City  Co.,  136  Mo.  177  ;  Cleveland  Co.  v.  Furnace 
Co.,  37  Oh.  St.  321.  — Ed. 


284  POTTS    V.    NEW    YORK    AND    NEW    ENGLAND    RAILROAD. 

ruled  by  Holt,  Chief  Justice  at  Guildlmll  (the  case  being  tried  before 
him  there),  May  12,  1  Ann.  Reg.  1702,  that  a  carrier  may  retain  the 
goods  for  his  hire  ;  and  upon  direction,  the  defendant  had  a  verdict 
given  for  him.^ 


POTTS  V.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD  CO. 

Supreme  Court  of  Massachusetts,   1881. 

[131    Mass.  455.] 

Tort  for  the  conversion  of  a  quantity  of  coal.  Answer,  a  general 
denial.  The  case  was  submitted  to  tlie  Superior  Court,  and,  after  judg- 
ment for  the  defendant,  to  this  court,  on  appeal,  upon  an  agreed  state- 
ment of  facts  in  substance  as  follows  : 

The  plaintitf,  a  coal  merchant,  sold  to  a  firm  in  Southbridge  in  this 
Commonwealth  a  large  quantity  of  coal  and  shipped  205  tons  thereof 
by  a  schooner  to  Norwich,  Connecticut,  to  be  thence  transported  by  the 
defendant  over  its  railroad  to  the  consignees  at  Southbridge.  The  de- 
fendant received  the  coal  at  Norvvich,  paying  the  water  freight  to  dis- 
charge the  schooner's  lien,  amounting  to  $205,  and  then  carried  the 
coal  to  Southbridge  and  delivered  to  the  consignees  all  but  119  tons 
thereof,  no  part  of  the  advances  for  water  freight  nor  the  defendant's 
freight  being  paid.  On  the  arrival  at  Southbridge  of  the  119  tons, 
which  is  the  coal  in  controversy,  the  consignees  having  failed,  the  plain- 
tiff duly  stopped  it  in  transitu,  and  demanded  it  of  the  defendant. 
The  defendant  refused  to  deliver  it,  claiming  a  lien  on  it  for  the  entire 
amount  of  the  water  freight  on  the  whole  cargo  paid  by  the  defendant, 
and  for  the  whole  of  the  defendant's  freight  on  the  cargo,  amounting  in 
all  to  S513.  The  plaintiff  tendered  to  the  defendant  $297,  which  was 
enough  to  cover  the  water  freight  and  the  defendant's  freight  on  the 
coal  in  question.     The  value  of  the  coal  in  controversy  was  S696. 

If  the  defendant  had  no  right  to  hold  the  coal  as  against  the  plaintiff 
for  the  advances  and  freight  on  the  whole  cargo,  judgment  was  to  be 
entered  for  the  plaintiff  for  S398,  with  interest  from  the  date  of  the  writ ; 
otherwise,  judgment  for  the  defendant. 

Gray,  C.  J.  A  carrier  of  goods  consigned  to  one  person  under  one 
contract  has  a  lien  upon  the  whole  for  the  lawful  freight  and  charges  on 
every  part,  and  a  delivery  of  part  of  the  goods  to  the  consignee  does 
not  discharge  or  waive  that  lien  upon  the  rest  without  proof  of  an  in- 
tention so  to  do.  Sodergren  v.  Flight,  cited  in  6  East,  622  ;  Abbott 
on  Shipping  (7th  ed.),  377  ;  Lane  i'.  Old  Colony  Railroad,  14  Gray, 
143;  New  Haven  &    Northampton  Co.  y.  Campbell,    128  Mass.  104. 

1  Compare:  Bird  v.  R.  R.,  72  Ga.  655  ;  Galena  Co.  v.  Rae.,  18  111.  488:  Wolf  v. 
Plough,  22  Kans.  659;  Goodman  v.  Stewart,  Wright,  216  ;  Pacific  R.  R.  v.  U.  S.,  2 
Wyo.  170.  — Ed. 


SHINGLEUR   V.   CANTON.  285 

And  when  the  consignor  delivers  goods  to  one  carrier  to  be  carried 
over  his  route,  and  thence  over  the  route  of  another  carrier,  he  makes 
the  first  carrier  his  forwarding  agent ;  and  the  second  carrier  has  a  lien, 
not  only  for  the  freight  over  his  own  part  of  the  route,  but  also  for  any 
freight  on  the  goods  paid  by  him  to  the  first  carrier.  Briggs  v.  Boston 
&  Lowell  Railroad,  6  Allen,  246,  250. 

The  right  of  stoppage  in  transitu  is  an  equitable  extension,  recog- 
nized by  the  courts  of  common  law,  of  the  seller's  lien  for  the  price  of 
goods  of  which  the  buyer  has  acquired  the  property,  but  not  the  posses- 
sion. Bloxara  v.  Sanders,  4  B.  &  C.  941,  948,  949,  and  7  D.  &  R.  396, 
405,  406  ;  Rowley  v.  Bigelow,  12  Pick.  307,  313.  This  right  is  indeed 
paramount  to  any  lien,  created  bj-  usage  or  b}-  agreement  between  the 
carrier  and  the  consignee,  for  a  general  balance  of  account.  Oppen- 
heim  v.  Russell,  3  B.  &  P.  42  ;  Jackson  v.  Nichol,  5  Ring.  N.  C.  508, 
518,  and  7  Scott,  577,  591  ;  see  also  Butler  v.  Woolcott,  2  N.  R.  64; 
Sears  v.  Wills,  4  Allen,  212,  216.  But  the  common-law  lien  of  a  car- 
rier upon  a  particular  consignment  of  goods  arises  from  the  act  of  the 
consignor  himself  in  delivering  the  goods  to  be  carried;  and  no  author- 
ity has  been  cited,  and  no  reason  ottered,  to  support  the  position  that 
this  lien  of  the  carrier  upon  the  whole  of  the  same  consignment  is  not 
as  valid  against  the  consignor  as  against  the  consignee. 

Judgment  for  the  defendant} 


SHINGLEUR  v.  CANTON. 
Supreme  Court  of  Mississippi,  1901. 

[78  Miss.  875.] 

Terral,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  sued  the  appellee  in  replevin  for  fifty-nine  bales  of 
cotton,  and  before  suit  brought  demanded  the  delivery  of  the  same, 
and  offered  to  the  warehouse  company  all  storage  and  other  charges 
thereon,  amounting  to  $124.55,  upon  said  cotton.  The  warehouse  com- 
pan}'  refused  the  deliver}^  of  the  cotton  unless  appellant  would  pay  it 
the  storage  and  other  charges  on  seventj^-nine  bales  of  cotton  previ- 
oush'  delivered  by  appellee  to  appellant,  amounting  to  $162.89.  For 
some  reason  appellant  declined  to  pay  the  charges  on  the  previous  bail- 
ments. It  appeared  from  the  evidence  that  a  separate  receipt  was 
given  for  each  bale  of  cotton,  and  there  was  no  connection  between 
the  bailment  of  the  fifty-nine  bales  of  cotton  sued  for  and  the  prior 
bailment  of  the  seventy-nine  bales  of  cotton,  upon  which  $162.89  was 
claimed  as  charges.     A  judgment  was  rendered  against  appellant  for 

1  Compare:  Westfield  v.  Ry.,  52  L.  J.  Q.  B.  276;  R.  R.  ;•.  Oil  Worlss,  126  Pa. 
St.  485  ;  Farrell  v.  R.  R.,  102  N.  C.  390;  White  v.  Vann,  6  Humph.  70.  — Ed. 


286  SHINGLE UE   V.    CANTON. 

the  expenses  on  the  seventy-nine  bales  of  cotton,  as  well  as  that  on 
the  fifty-nine  bales  sued  for.  In  that  respect,  it  is  claimed  that  the 
court  erred. 

1.  Tlie  contention  of  the  appellee  that  a  warehouse  lien  is  a  general 
lien  and  gives  a  right  to  retain  for  a  balance  of  accounts  relating  to 
similar  dealings  is  not  to  be  maintained.  It  is  a  common-law  lien,  which 
is  tlie  creature  of  policy,  and  is  a  specific  or  particular  lien,  which 
attaches  onl}'  upon  each  separate  bailment,  and  is  lost  when  all  the 
articles  of  each  several  bailment  are  delivered  to  the  bailor  or  his 
assignee. 

2.  The  contention  that  a  warehouseman,  under  §  2682,  code  1892, 
has  a  lien  on  cotton  raised  in  this  State,  for  storage  and  other  cliarges 
connected  therewith,  is  not  supported  by  any  reasonable  construction 
of  that  section. 

The  cotton  here  was  not  in  the  warehouse  to  prepare  it  for  mai'ket, 
but  was  at  the  market,  and  was  there  for  sale  or  shipment,  and  the 
charges  claimed  were  incident  to  the  handling  of  the  cotton  then  in  the 
market.     It  is  not  covered,  we  think,  by  §  2GS2. 

3.  On  the  delivery  of  each  bale  of  cotton  at  the  warehouse  by  the 
farmer  bringing  it  in  for  sale,  a  receipt  was  given,  of  the  following 
tenor : 

"  No.  .     Received  of • one  bale  of  cotton,  in  apparent 

good  order.    Mark, .    No., .    Weight, .    Remarks, . 


,  Manager. 

"  Responsible  for  loss  or  damage  by  fire  or  water.  This  bale  of 
cotton  to  be  delivered  onl}'  on  this  receipt  properly-  indorsed." 

It  is  not  denied  but  that  appellant  had  bought  the  fifty-nine  bales  of 
cotton  from  the  owners,  and  had  received  these  unindorsed  receipts 
as  a  symbolical  delivery  of  the  bales  of  cotton  ;  that,  as  between  the 
bailor  and  the  assignee,  the  property  was  intended  to  be  passed  to  the 
assignee  by  the  delivery  of  the  unindorsed  receipts.  The  intention  of 
the  parties  gives  effect  to  their  acts  as  a  valid  transfer  of  the  property. 
Allen  V.  Williams,  12  Pick.  297;  Bank  v.  Dearborn,  115  Mass.  219; 
Bank  v.  Ross,  9  Mo.  App.  399  ;  Lickbarrow  v.  Mason,  Smith's  Ldg. 
Cases  (8th  ed.),  1209. 

However,  no  objection  was  made  in  the  court  below  to  the  receipts 
because  not  indorsed,  and  the  objection  comes  too  late  when  made  here 
for  the  first  time. 

The  appellant,  upon  the  case  as  made  by  the  record,  was  entitled  to 
recover  the  fifty-nine  bales  of  cotton  the  charges  on  which  had  been 
tendered,  with  all  costs. 

Reversed  and  remanded.'^ 

^  Compare :  Scott  v.  Jester,  13  Ark.  446;  Naylor  v.  Maugles,  1  Esp.  109  ;  Lenckart 
I'.  Cooper,  3  Scott,  521  ;  Steel  Co.  v.  K.  R.  Co.,  94  Ga.  636 ;  Hartshorns  v.  Jolmson, 
2  Halst.  108;  Bacharach  v.  Freight  Line,  133  Pa.  St.  414.  — Ed. 


WESTERN   TKANSPOKTATION   CO.   V.   HOYT.  287 


WESTERN  TRANSPORTATION  CO.  v.   HOYT. 

Court  op  Appeals,   New  York,  1877. 

[69  N.  Y.  230.1] 

Church,  C.  J.  The  decision  in  the  case  of  the  present  plaintiflf 
against  Barber,  56  N.  Y.  544,  disposes  of  some  of  the  questions  in- 
volved in  this  case.  That  was  an  action  for  conversion  against  the 
warehouseman  for  delivering  the  oats  to  the  defendants,  and  it  was  there 
held  that  the  proper  construction  of  the  bill  of  lading  was  to  give  the 
defendants,  who  were  consignees,  three  full  week  da3s  to  discharge  the 
cargo,  and  such  reasonable  time  after  that  period  as  the  circumstances 
might  require,  upon  paying  the  specified  demurrage,  but  that  the  car- 
rier might  terminate  this  additional  privilege  or  right  by  a  proper 
notice.  It  appears  in  this,  as  in  that  case,  that  notice  of  the  arrival 
of  the  boat  "Clio"  was  given  to  the  consignees  on  Friday,  at  ten 
minutes  past  twelve,  and  it  was  not  disputed  on  the  trial  that  when  the 
notice  is  after  twelve  o'clock,  that  day  is  not  to  be  counted  as  any  part 
of  the  three  days  given  absolutely  for  the  discharge  of  the  cargo,  and 
it  appeared,  and  seems  not  to  have  been  disputed,  that  the  three  days 
would  not  expire  until  Tuesday  night  at  twelve  o'clock.  We  held 
that  the  act  of  the  carrier  in  removing  his  boat,  and  storing  the  grain 
elsewhere,  on  Tuesday,  prior  to  the  expiration  of  the  three  days,  was 
wrongful,  and  amounted  to  a  conversion,  and  deprived  him  of  his  lien 
for  freight.  The  case  was  not  materially  changed  in  this  respect  upon 
the  trial  of  this  action.  The  notice  which  was  claimed  to  have  been 
given  was  given  on  Tuesday  morning,  to  the  effect  that  unless  the 
cargo  was  discharged  on  that  day  the  oats  would  be  stored.  Such 
a  notice  would  not  relieve  the  plaintiff  from  the  consequences  of  his 
wrongful  act  in  storing  the  oats,  for  the  reason  that  the  da}'  extended, 
as  was  proved,  to  midnight,  and  the  plaintiff  violated  the  notice  by 
removing  the  boat  several  hours  previously.  He  could  not  by  a  notice 
shorten  the  time  fixed  by  the  contract  itself.  The  construction  of  the 
l)ill  of  lading,  the  character  of  the  act  of  the  plaintiff  in  storing  the 
oats,  and  the  effect  of  the  act  upon  its  rights  to  a  lien  for  freight  must 
be  regarded  as  adjudged  and  settled  in  the  case  referred  to. 

Other  questions  are  presented  upon  this  appeal  which  must  be  con- 
sidered. About  5,000  of  the  14,000  bushels  of  the  oats  were  removed 
from  the  boat  by  the  elevator  procured  by  the  defendants,  and  the 
remainder  were  stored  in  Barber's  warehouse.  Subsequently  the  de- 
fendants demanded  and  obtained  possession  of  the  oats  from  Barber 
upon  giving  him  indemnity  against  any  claim  of  plaintiff  for  freiglit  or 
for  the  oats.  It  is  urged  that  the  defendants  taking  possession  of  the 
property  entitled  the  plaintiff  to  the  freight.     There  is  some  apparent 

1  Only  opiuion  is  printed.  —  Ed. 


288  WESTERN   TRANSPORTATION   CO.   V.   IIOYT. 

plausibility  in  equity  in  this  position,  but  it  must  be  observed  that  a 
delivery  to  ihe  consignees  is  as  much  a  part  of  the  contract  as  the 
transportation.  Mr.  Angell,  in  his  work  on  carriers,  says:  "It  is  not 
enough  that  tlic  goods  be  carried  in  safety  to  the  place  of  delivery,  but 
the  carrier  must,  and  without  any  demand  upon  him,  deliver,  and  he  is 
not  entitled  to  freight  until  the  contract  for  a  complete  delivery  is  per- 
formed." §  282.  When  the  responsibility  has  begun,  it  continues 
until  there  has  been  a  due  delivery  by  the  carrier.  Id.,  note  1,  and 
cases  cited.  Parsons  on  Shipping,  220.  And  in  this  case,  the  bill  of 
lading  expressly  requires  the  property  to  be  transported  and  delivered 
to  the  consignees.  The  delivery  was  as  essential  to  performance  as 
transportati9n  to  New  York,  and  it  is  a  substantial  part  of  the  contract. 
The  plaintiff  might  as  well,  in  a  legal  view,  have  stopped  at  Albany,  or 
any  other  intermediate  port,  and  stored  the  grain,  as  to  have  stored  it 
in  Brooklyn.  In  either  case  he  could  not  aver  a  full  performance,  nor 
that  he  was  prevented  by  the  defendants  from  performing.  It  follows 
that  he  cannot  recover  upon  the  contract.  Performance  is  a  condition 
precedent  to  a  recovery.  As  said  by  Lord  Ellenborough  in  Liddard  v. 
Lopes,  10  East,  526,  "The  parties  have  entered  into  a  special  con- 
tract by  which  freight  is  made  payable  in  one  event  only,  that  of  a 
right  delivery  of  tiie  cargo  according  to  the  terms  of  the  contract,  and 
that  event  has  not  taken  place,  there  has  been  no  such  delivery,  and 
consequentl}'  the  plaintiff  is  not  entitled  to  recover." 

As  the  plaintiff  cannot  recover  under  the  contract,  if  he  has  any 
claim  for  freight  it  is  only  for  pro  rata  freight,  which  is  sometimes 
allowed,  when  the  transportation  has  been  interrupted  or  prevented  by 
stress  of  weather  or  other  cause.  In  such  a  case,  if  the  freighter  or 
his  consignee  is  willing  to  dispense  with  the  performance  of  the  whole 
voyage,  and  voluntarily  accept  the  goods  before  the  complete  service  is 
rendered,  a  proportionate  amount  of  freight  will  be  due  as  "  freight 
2)ro  rata  itmeris."  This  principle  was  derived  from  the  marine  law, 
and  it  is  said  that  the  common  law  presumes  a  promise  to  that  effect 
as  being  made  by  the  party  who  consents  to  accept  his  goods  at  a  place 
short  of  the  port  of  destination,  for  he  obtains  his  property-  with  the 
advantage  of  the  carriage  thus  far.  The  principle  is  based  upon 
the  idea  of  a  new  contract,  and  not  upon  the  right  to  recover  upon  the 
original  contract.  The  application  of  this  principle  has  been  consider- 
ably modified  by  the  courts.  In  the  early  case  of  Luke  v.  Lyde,  2  Burr. 
889,  a  contract  was  inferred  from  the  fact  of  acceptance,  and  the  rule 
was  enunciated  without  qualification  that  from  such  fact,  without  re- 
gard to  the  circumstances,  and  whether  the  acceptance  was  voluntary 
or  from  necessity,  a  new  contract  to  pay  pro  rata,  freight  might  be 
inferred.  Some  later  English  cases,  and  the  earlier  American  cases, 
apparently  followed  this  rule  ;  but  the  rule  has  been  in  both  countries 
materially  modified,  and  it  is  now  held  that  taking  possession  from 
necessity  to  save  the  property  from  destruction,  or  in  consequence  of 
the  wrongful  act  of  the  freighter,  as  in  Hunter  v.  Priusey,  10  East, 


WESTERN    TRANSPORTATION    CO.    V.    HOYT.  289 

394,  and  in  13  M.  &  Wels.  229,  where  the  master  caused  the  goods  to 
be  sold,  or  when  the  carrier  refuses  to  complete  the  performance  of  his 
contract,  the  carrier  is  not  entitled  to  any  freight.  Parke,  B.,  in  the 
last  case  stated  the  rule  with  approval,  that  to  justify  a  claim  for  jyro 
rata  freight  there  must  be  a  voluntary  acceptance  of  the  goods  at  an 
intermediate  port,  in  such  a  mode  as  to  raise  a  fair  inference  that  the 
further  carriage  of  the  goods  was  intentionally  dispensed  with ;  and 
Lord  f^llenborough,  in  Hunter -y.  Prinse}',  sifpra,  said:  "The  general 
property  in  the  goods  is  in  the  freighter;  the  ship-owner  has  no  right 
to  withhold  the  possession  from  him  unless  he  has  either  earned  his 
freight  or  is  going  on  to  earn  it,  If  no  freight  be  earned,  and  he  decline 
proceeding  to  earn  any,  the  freighter  has  a  right  to  the  possession." 

Thompson,  C.  J.,  in  15  Jr.  12,  said  :  "  If  the  ship-owner  will  not  or 
cannot  carry  on  the  cargo,  the  freighter  is  entitled  to  receive  his  goods 
without  paying  freight."  It  is  unnecessarv  to  review  the  authorities. 
The  subject  is  considered  in  Angell  on  Carriers,  §  402  to  409,  and 
Abbott  on  Shipping,  5th  Am.  ed.  547,  and  in  the  notes  and  numerous 
cases  referi'ed  to,  and  the  rule  as  above  stated  seems  to  have  been 
generally  adopted  by  nearly  all  the  recent  decisions,  and  its  manifest 
justice  commends  itself  to  our  judgment.  In  this  case  no  inference  of 
a  promise  to  pay  pro  rata  or  any  freight  can  be  drawn.  The  circum- 
stances strongly  repel  any  such  intention.  The  carrier  doubtless  acted 
in  accordance  with  what  it  believed  to  be  its  legal  rights,  but  the  act  of 
storing  was  a  refusal  to  deliver,  and  as  we  held  in  the  Barber  case, 
stq?ra,  a  wrongful  act  amounting  to  conversion,  quite  equal  in  effect 
to  the  sale  of  the  goods  in  the  cases  cited.  The  carrier  must  therefore 
be  regarded  as  refusing  to  deliver  the  oats.  Neither  the  owner  nor 
his  consignee  intended  to  waive  a  full  performance  or  to  assume  volun- 
tarily to  relieve  the  plaintiff  from  non-performance.  They  claimed  the 
possession  of  the  property  and  the  right  to  possession  discharged  from 
all  claim  for  freight,  and  indemnified  the  warehouseman  against  such 
claim.  Every  circumstance  repels  the  idea  of  a  promise  to  pay  joro 
rata  freight.  The  case  stands,  therefore,  unembarrassed  In'  the  cir- 
cumstance that  the  consignee  took  possession  of  the  propert}*  under 
the  circumstances,  and  it  presents  the  ordinary  case  of  an  action  on 
contract  where  the  party  seeking  to  enforce  it  has  not  shown  a  full 
performance. 

The  next  question  is,  whether  the  plaintiff  is  entitled  to  freight  upon 
the  5,000  bushels  delivered.  The  contract  for  freight  is  an  entirety, 
and  this  applies  as  well  to  a  deliver}'  of  the  whole  quantit}-  of  goods  as 
to  a  deliver}'  at  all,  or  as  to  a  full  transportation.  Parsons  on  Shipping, 
204.  There  are  cases  where  this  rule  as  to  quantity  has  been  qualified, 
but  they  have,  I  think,  no  ap]jlication  to  the  present  case.  The  de- 
livery of  the  5,000  bushels  was  made  with  the  understanding  and 
expectation  that  the  whole  quantity  was  to  be  delivered,  and  no  infer- 
ence can  be  drawn  of  an  intention  to  pay  freight  in  part  without  a 
delivery  of  the  whole.     The  quantity  delivered  must  be  regarded  as 

19 


290    BDELINGTON,  ETC.  RAILROAD  V.    CHICAGO  LUMBER  CO, 

having  been  received  subject  to  the  delivery  of  the  whole  cargo.  There 
was  no  waiver.  The  principle  involved  is  analogous  to  a  part  delivery 
from  time  to  time  of  personal  property  sold  and  required  to  be  deliv- 
ered. If  the  whole  is  not  delivered,  no  recovery  can  be  had  for  that 
portion  delivered,     18  Wend.  187  ;   13  J,  R.  94  ;  24  N.  Y,  317, 

The  claim  for  lake  and  Buffalo  charges  stands,  I  think,  upon  a  dif- 
ferent footing.  These  are  stated  in  the  bill  of  lading  at  5|  cents  a 
bushel,  amounting  to  $842,38.  It  must  be  presumed,  as  the  case 
appears,  that  the  plaintiff  advanced  these  charges,  and  if  so  it  became 
subrogated  to  the  rights  of  the  antecedent  carrier.  The  claim  for 
these  charges  was  complete  when  the  plaintiff  received  the  property  to 
transport,  and  was  not  merged  in  the  condition  requiring  the  perform- 
ance of  the  contract  by  the  plaintiff  to  transport  the  property  from 
Buffalo.  That  contract  was  independent  of  this  claim.  The  bill  of 
lading  is  for  transportation  and  deliver}'  upon  payment  of  freight  and 
charges  ;  but  if  the  plaintiff  had  a  right  to  demand  any  pait  of  the 
charges  independent  of  the  bill  of  lading,  that  instrument  would  not 
deprive  him  of  such  right.  AVe  have  been  referred  to  no  autliorit}' 
making  a  liability  upon  such  an  advance  dependent  upon  the  perform- 
ance of  the  contract  for  subsequent  carriage.  If  the  action  had  been 
by  the  lake  carrier  to  recover  for  the  freight  to  Buffalo,  it  is  very  clear 
that  the  defendants  could  not  have  interposed  as  a  defence  that  the 
carrier  from  Buffalo  had  not  performed,  and  why  is  not  the  plaintiff 
entitled  to  the  same  rights  in  respect  to  this  claim  as  the  former 
carrier  ? 

I  am  unable  to  answer  this  question  satisfactoril}'  as  the  case  now 
appears. 

If  these  views  are  correct,  a  nonsuit  was  improper,  and  there  must 
be  a  new  trial  with  costs  to  abide  event. 

All  concur,  except  Allen,  J.,  taking  no  part,  and  Andrews,  J., 
absent.  Judgment  reversed} 


BURLINGTON   AND   MISSOURI   RIVER   RAILROAD   CO.  v. 
CHICAGO   LUMBER   CO, 

Supreme  Court  of  Nebraska,    1884. 

[  15  AW;.  390.] 

Reese,  J.  This  is  an  action  in  garnishment  commenced  in  the  Dis- 
trict Court  of  Otoe  county  by  the  defendant  in  error,  a  judgment  cred- 
itor of  one  AVilliam  W.  Babl)itt,  against  the  plaintiff  in  error,  as  a 
supposed  debtor  of  tlie  said  Babbitt. 

^  Compare:  R.  T{.  r.  Saunders,  128  Mass.  53;  Hurtcn  r.  Insurance  Co.,  1  Wash.  C. 
C.  530 ;  Escopinche  v.  Stewart,  2  Conn.  262 ;  Thil):uilt  v.  Russell,  5  Harr.  293  ; 
Stevens  v.  Stewart,  69  Mass.  108;  Minnesota  Co.  v.  Cliapmau,  2  Ohio  St.  207,  —  Ed. 


BURLINGTON,    ETC.    KAILROAD    V.   CHICAGO    LUMBER   CO.  291 

The  answer  of  the  pltiintifF  in  error  discloses  the  fact  that  at  tlie 
time  of  the  service  of  tlie  siunnions  in  gariiislnnent  it  was  indebted  to 
the  said  Babbitt  in  the  sum  of  Si 44. 51  for  overcharges,  before  that 
time  made,  on  freight.  Said  answer  discloses  the  fnrtlier  fact  that  it 
had  in  its  possession  at  said  time  one  hundred  and  fifty-three  tons  and 
fourteen  hundred  pounds  of  coal  (eleven  carloads)  consigiu-d  to  the 
said  Babbitt,  and  worth,  as  it  alleges,  four  dollars  per  ton,  amounting 
to  $616.10;  but  it  further  alleges  that  its  charges  against  said  coal 
amount  to  the  sum  of  81, 021). 63,  which  it  itemizes  as  follows:  Freight 
anil  back  charges,  -$666. 63  ;  demurrage,  eighty-tive  days  in  car,  §330; 
unloading  coal,  $33  ;  being  $413.52  more  than  the  alleged  value  of  the 
coal.  The  plaintiff  in  error  therefore  insists  it  was  not  indebted  to 
said  Babbitt  in  any  amount. 

It  is  shown  by  the  evidence  in  the  trial  of  the  cause  that  at  the  time 
of  the  unloading  of  the  coal  by  the  plaintiff  in  error,  it  converted  it  to 
its  own  use,  unloading  it  into  its  own  bins. 

The  finding  of  the  District  Court  was  in  accordance  with  the  above 
facts,  and  judgment  was  rendered  against  the  plaintiff  in  error,  and  in 
favor  of  the  defendant  in  error,  for  the  said  sum  of  $144.51.  Both 
parties  excepted  to  the  ruling  of  the  court,  but  the  plaintiff  in  error, 
only,  brings  the  case  into  this  court  by  petition  in  error,  alleging  that 
the  court  erred  in  rendering  judgment  against  it,  for  the  reason  that  the 
judgment  is  contrary  to  law,  and  contrary  to  and  inconsistent  with  the 
findings  of  fact  by  the  court;  also  in  not  discharging  the  plaintiff  in 
error  without  liability  as  garnishee. 

According  to  our  view  of  the  case,  it  will  not  be  necessary  to  examine 
the  alleged  errors  separately,  as  we  can  best  present  our  conclusions  by 
grouping  all  together.  But  before  doing  so  it  is  proper  to  note  the  fact 
that  the  defendant  in  error  in  the  course  of  the  trial  offered  testimony 
to  prove  that  the  coal  was  worth  $8  |)er  ton  instead  of  $4  as  claimed  by 
plaintiff  in  error,  but  upon  objection  by  plaintiff  the  offer  was  overruled 
by  the  court  and  the  evidence  excluded.  This  ruling  must  have  been 
maile  upon  the  theory  that  the  whole  matter  of  the  eleven  carloads  of 
coal  should  be  left  out  of  the  question,  and  the  findings  of  the  court 
upon  that  subject  were  not  intended  in  any  respect  as  a  basis  for  the 
judgment.  In  this  we  think  the  District  Court  was  correct,  at  least  if 
the  court  did  err  it  was  against  the  defendant  in  error  and  not  the 
plaintiff. 

The  plaintiff  in  error  concedes  in  its  brief  that  the  freight  charges 
were  more  than  the  value  of  the  coal,  but  seeks  to  explain  tiiat  fact  by 
saying  •'  the  coal  was  wrongfully  turned  in  transit  from  its  proper 
course;  it  should  have  come  over  the  Council  Bluffs  and  St.  Joe  Rail- 
road, and  it  was  turned  and  went  the  roundabout  way,  meeting  with 
several  wnsliouts  which  caused  the  freight  to  be  more  tlian  the  coal." 
This  explanation  we  think  will  hardly  meet  the  case.  We  know  of  no 
rule  of  law  which  will  permit  railroad  companies,  as  common  carriers, 
to  "  wrongfully"  send  freight  by  a  ''  roundabout"  way,  instead  of  over 


292  DENVER    AND    PJO    GRANDE    RAILROAD   V.    HILL. 

its  direct  lines,  and  thus  increase  the  cost  of  transportation.  "While 
this  course  might  be  instrumental  m  increasing  the  revenues  of  the  car- 
rier, it  would  be  very  injurious  to  the  connnerce  of  the  country,  wiiich 
requires  not  only  cheap  but  direct  and  rapid  transportation. 

To  these  charges  for  freight  was  added  another  burdensome  charge, 
that  of  demurrage.  It  is  claimed  by  the  plaintiff  that  this  freight  was 
allowed  to  stand  in  its  cars  in  all  eighty-five  days,  i.  e.  equivalent  to 
one  car  that  number  of  days,  and  for  this  it  charges  8330.  It  is  not 
claimed  that  this  charge  was  made  by  virtue  of  any  contract  between 
the  shipper  and  the  carrier,  nor  yet  by  any  statutory  enactment  per- 
mitting it,  or  by  any  use  or  custom  which  may  possibly  have  acquired 
the  force  of  law.  And  we  are  unable  to  see  how  any  such  charge  can 
be  insisted  upon  in  this  action.  We  know  of  no  authority  for  it,  and 
our  attention  has  been  called  to  none. 

In  Chicago  &  North  Western  Ry.  Co.  v.  Jenkins,  103  111.  588,  it  is 
decided  that  the  right  to  demurrage  does  not  attach  to  carriers  b}'  rail- 
roads. If  its  exists  at  all,  as  a  legal  right,  it  exists  only  as  to  carriers 
l)y  sea-going  vessels,  and  is  confined  to  maritime  law.  As  to  whether 
demurrage  might  be  charged  in  case  of  a  contract  to  that  eflfect  we  ex- 
press no  opinion,  but  that  it  cannot  be  allowed  in  this  case  we  have 
no  doubt. 

The  charge  of  833  for  unloading  the  coal  is  equally  objectionable. 
The  proof  shows  that  the  plaintiff  in  error  unloaded  the  coal  into  its 
own  bins  for  its  own  use.  There  is  no  claim  that  it  cost  any  more  to 
unload  this  coal  than  it  would  had  it  belonged  to  the  plaintiff  in  error 
in  the  first  instance.  Wliy  should  it  charge  for  doing  with  this  coal  the 
same  as  it  would  have  had  to  do  with  its  own  ?  We  can  see  no  reason 
for  such  charge,  and  it  should  not  be  allowed. 

From  tlie  foregoing  we  are  led  to  the  conclusion  that  the  District 
Court  did  not  err,  as  against  the  plaintifT  in  error  in  the  judgment  ren- 
dered ;  that  if  its  judgment  was  erroneous  the  defendant  in  error  is  the 
only  sufferer  thereby,  but  as  it  is  not  seeking  any  relief  at  the  liands  of 
this  court  the  judgment  of  tlie  District  Court  must  be  afllrmed. 

The  other  judges  concur.'  Jtalyment  affirmed. 


DENVER  AND   RIO   GRANDE   RAILROAD    CO.   v.  HILL. 
Supreme  Court  of  Colorado,  1889. 

[13  Col.  35.) 

The  appellee,  as  plaintiff,  filed  his  complaint  against  the  defendant 
in  the  court  below,  alleging  ownershq)  and  right  of  possession  to  cer- 
tain grain  which  he  claimed  was  unlawfully  taken  and  wrongfully  with- 

1  Compare:  Crommclin  v.  R.  R.,  4  Knvps,  190;  Hunt  v.  Ilaskoll,  24  Me.  .139; 
Mill«r  V.  MansfioM,  11:2  M.-uss.  200 ;  Clendamll  v.  Tuckerman,  17  Ikirb.  184;  Beck- 
with  V.  Trisbie,  32  Vt.  569.  —  Ed. 


DENVER   AND   lUO   GRANDE    RAILROAD    V.    HILL.  293 

held  from  him  by  the  defendant  after  demand.  The  value  of  the 
propert}^  was  stated  to  be  $400.  The  defendant  denied  all  the  allega- 
tions of  the  complaint  and  claimed  a  carrier's  lien  upon  the  property 
for  transportation  from  Denver  to  Colorado  S[)rings,  and  also  for  freight 
charges  advanced  to  the  Union  Pacific  Railway  Company.  In  his  rep- 
lication the  plaintiff  denied  the  defendant's  claim  for  a  lien  upon  tlie 
property',  and  alleged  that  the  owner  had  directed  the  goods  to  be 
shipped  from  the  city  of  Denver  to  their  destination  over  the  Denver 
and  New  Orleans  Railroad,  a  competing  line  with  that  operated  by  the 
defendant,  and  averred  that  the  defendant,  well  knowing  such  ship- 
ping directions,  obtained  possession  of  the  goods  as  the  result  of  a  con- 
spiracy* between  it  and  the  Union  Pacific  Company  to  divert  all  traffic 
from  such  competing  line. 

Upon  a  trial  to  the  court  below  without  the  intervention  of  a  jurj' 
the  issues  were  found  for  the  plaintiff  and  a  judgment  rendered  in  his 
favor.  To  reverse  this  judgment  the  defendant  brings  the  case  here 
by  appeal. 

Mr.  Justice  Hayt  delivered  the  opinion  of  the  court. 

From  the  evidence  introduced  at  the  trial  it  is  shown  that  in  the  year 
1883  a  car-load  of  grain  was  shipped  from  St.  Edwards,  Neb.,  to  the 
appellee,  at  Colorado  Springs.  The  city  of  Denver  being  the  nearest 
point  to  Colorado  Springs  upon  the  line  of  the  Union  Pacific  road,  the 
consignor  directed  the  goods  to  be  forwarded  from  Denver  to  tlieir 
destination  b}'  the  Denver  and  New  Orleans  road,  which  directions 
were  plainly  marked  upon  the  receipt  given  for  the  goods  by  the  agent 
of  tlie  Union  Pacific  Company  at  St.  Edwards,  and  also  upon  the  way- 
bill filled  out  at  the  same  time.  The  agent  of  the  Denver  and  New 
Orleans  road  at  Denver,  having  been  informed  of  the  shipment,  notified 
the  agent  of  the  Union  Pacific  road  at  Denver,  shortly  before  the  arrival 
of  these  goods,  that  the  former  company  would  insist  upon  having  these 
goods  turned  over  to  it  at  Denver  for  transportation  over  its  road  to 
appellee  at  Colorado  Springs,  and  was  informed  by  the  former  agent 
that,  in  obedience  to  instructions  from  his  superiors,  he  must  decline 
to  deliver  the  goods  to  the  Denver  and  New  Orleans  road.  The  agent 
of  the  latter  road  renewed  the  claim  for  the  goods  from  da}-  to  da}', 
and  upon  the  day  of  the  arrival  of  the  goods  in  Denver,  and  while  the 
same  were  in  the  yards  of  the  Union  Pacific  road  at  Denver,  made  in- 
quiry in  reference  to  the  matter  and  was  informed  hy  the  Union  Pacific 
oflScials  that  the  goods  had  not  yet  arrived  and  could  not  arrive  be- 
fore the  following  da}-.  The  day  after,  however,  he  learned  that  the 
goods  had  arrived  the  day  before  and  were  then  at  Colorado  Springs, 
having  l)een  shipped  over  tlie  Denver  and  Rio  Grande  Railroad,  a 
competing  line  to  the  one  operated  by  the  Denver  and  New  Orleans 
Company.  It  was  also  shown  that  it  was  the  common  practice  at  this 
time  for  the  Union  Pacific  Company  to  deliver,  and  the  Denver  and  Rio 
Grande  road  to  receive  and  transport,  freight  consigned  over  the  Den- 
ver and  New  Orleans  road,  and  that  this  was  done  iu  pursuance  of  an 


294  DENVEK    AND    RIO    GEANDE   RAILROAD    V.    HILL. 

agreement  between  the  Ibnner  companies.  Mr.  Thomas  Whitall,  the 
local  freight  agent  of  the  Union  Pacific  Railway  Companj',  testified  at 
the  trial  that  Mr.  Ta3lor,  agent  of  the  Denver  and  xsew  Orleans  road, 
at  various  times  presented  to  him  bills  of  lading  for  freigiit  in  posses- 
sion of  the  Union  Pacific  Compan}',  but  routed  over  the  Denver  and 
New  Orleans,  and  that  he  believes  in  every  instance  sucli  freight  was 
sent  by  the  Denver  and  Rio  Grande  road,  and  that  in  such  cases  it 
was  customary  to  furnish  tlie  latter  company  with  bills  of  lading  show- 
ing the  correct  routing  directions  of  tlie  goods.  The  testimony  also 
shows  that  this  was  not  only  done  with  the  knowledge  and  consent 
of  the  general  manager  and  the  general  freight  agent  of  the  Denver  and 
Rio  Grande  Company,  but  that  these  officers  were  active  and  vigilant 
in  requiring  goods  so  routed  to  be  diverted  to  tlie  Denver  and  Rio 
Grande  road  ;  and  that  in  the  few  instances  in  which,  in  obedience  to 
the  directions  of  the  consignors,  the  goods  were  delivered  to  the  Den- 
ver and  New  Orleans  road,  called  for  a  vigorous  protest  from  them, 
coupled  with  an  implied  threat  of  retaliation  against  the  Union  Pacific 
Company. 

No  attempt  was  made  by  appellant  to  disprove  the  evidence  introduced 
by  the  appellee  in  the  court  below.  It  is,  however,  contended  upon 
this  appeal  that  the  judgment  is  contrary  to  law. 

It  has  been  held  that  a  carrier  receiving  goods  to  be  transported 
beyond  its  line,  in  delivering  them  to  a  subsequent  carrier  acted  as  a 
special  agent  of  the  consignor,  with  limited  powers;  and  if  it  disre- 
garded its  instructions  and  exceeded  its  authority,  the  subsequent 
carrier  could  not  maintain  a  lien  upon  the  goods  for  its  transporta- 
tion charges.  Fitch  /'.  Newberry,  1  Dong.  (Micii.)  1.  In  later  decisions 
in  other  States  the  doctrine  of  the  Michigan  court,  however,  has  not 
been  followed  ;  the  courts  now  generally  holding  that  a  carrier  receiv- 
ing goods  to  be  transported  over  its  own  line  to  a  point  beyond  has  the 
ap[jarent  authority  to  select  any  of  the  ordinary  routes  leading  thereto, 
and  that  the  second  carrier  receiving  the  goods  in  good  faith,  in  the 
ordinary  and  usual  course  of  business  between  connecting  lines,  with- 
out notice  of  any  special  directions  on  the  part  of  the  consignor,  will 
have  a  lien  for  his  reasonable  charges  for  transporting  such  goods  over 
its  own  line,  and  also  for  such  reasonable  charges  as  it  may  have 
advanced  to  the  first  carrier.     Price  v.  Railroad  Co.,  12  Colo.  402. 

An  examination  of  the  opinion  of  Commissioner  Stallcup  in  the  case 
just  cited  will  show  that,  while  the  right  of  the  consignors  to  select 
the  routes  over  which  the  goods  should  be  transported  is  full}'  recog- 
nized, it  is  held  that  in  case  his  instructions  in  reference  theieto  are 
not  obeyed  by  the  first  carrier,  the  owner's  action  was  not  against  the 
innocent  second  carrier,  but  against  his  own  wrong-doing  agent.  In 
support  of  this  position  the  following  cases  were  relied  upon  :  Patten 
V.  Railroad  Co.,  29  P^ed.  Rep.  590;  Schneider  v.  Evans,  9  Amer.  Law 
Reg.  (N.  S.)  536  ;  Briggs  r.  Railway  Co.,  6  Allen,  246. 

In  the  first  two  cases  cited  the   ignorance  of  the  second  carrier  of 


DENVEK   AND    RIO    GRANDE    RAILROAD    V.    HILL.  295 

the  terms  of  the  contract  is  made  an  express  condition  of  its  exemp- 
tion from  Habilit}'  in  case  of  loss  to  the  owner.  And  a  reading  of 
the  opinion  in  the  case  of  Briggs  v.  Railway  Compan}',  snpra^  will 
also  show  that  in  that  case  no  wrong  or  negligence  was  attributable 
to  the  defendant  company.  In  the  case  at  bar,  however,  we  have  seen 
that  the  Union  Pacific  and  the  Denver  and  Rio  Grande  Companies 
had  entered  into  an  agreement  to  disregard  all  directions  requiring 
goods  to  go  over  other  lines,  and  that,  in  pursuance  thereof,  all  routing 
directions  to  the  contrary  were  being  ignored  by  both  companies  ;  that 
the  general  officers  of  the  appellant  company  were  zealousl}'  enforcing  a 
compliance  on  the  part  of  the  Union  Pacific  Company  with  such  agree- 
ment ;  that  it  was  customary  for  the  latter  company  to  deliver  goods 
routed  over  the  Denver  and  New  Orleans  road  to  the  Denver  and  Rio 
Grande  road  for  transportation  ;  and  that  goods  were  so  received  and 
forwarded  by  the  latter  company-,  with  full  knowledge  that  the  same 
was  in  violation  of  the  owner's  directions,  and  that  the  officers  of  the 
road  entered  a  vigorous  protest  -whenever  the  Union  Pacific  Company 
delivered  goods  to  the  Denver  and  New  Orleans  road  for  transporta- 
tion, although  such  delivery  was  in  accordance  with  the  express  direc- 
tions of  the  owner  of  the  property.  The  evidence  shows  that  the 
shipping  directions  in  reference  to  the  goods  in  controversy  were  wil- 
fully violated  by  the  Union  Pacific  Company,  and  we  think,  under  the 
evidence,  the  court  below  was  justified  in  holding  the  Denver  and  Rio 
Grande  Company  also  responsible  for  such  violation. 

This  company  having  been  a  party  to  an  illegal  contract  providing 
not  onl}-  for  a  violation  of  the  owner's  routing  directions,  but  calcu- 
lated also  to  prevent  notice  of  such  directions  from  reaching  the  sec- 
ond carrier,  cannot  be  shielded  in  this  instance  because  no  witness  was 
able  to  swear  in  direct  terms  that  it  had  notice  of  the  owner's  direc- 
tions in  reference  to  the  shipment  of  these  particular  goods.  Under 
these  circumstances  we  are  of  the  opinion  that  the  court  below  was 
warranted  in  finding  that  the  possession  of  the  property  was  not  ob- 
tained in  good  faith  b}'  the  defendant  in  the  ordinary  or  usual  course 
of  business  between  connecting  carriers,  but  that  such  possession  was 
wrongful  and  illegal,  and  that  the  defendant  was  consequently  not 
entitled  to  a  carrier's  lien  upon  the  same,  either  for  its  own  charges 
or  those  advanced  to  the  former  carrier,  and  therefore  there  was  no 
error  in  entering  judgment  for  plaintiff.  Redf.  Carr.  §  271  et  seq.  ; 
Fitch  V.  Newberry,  supra  ;  Robinson  v.  Baker,  5  Cush.  137;  Andrew 
V.  Dieterich,  14  Wend.  31  ;  Briggs  v.  Railroad  Co.,  supra.  The  judg- 
ment is  accordingly  affirmed.  Affirmed} 

Chief  Justice  Helm  not  sitting. 

1  Compare :  Bird  r.  R.  R.,  72  Ga.  655  ;  Robinson  v.  Baker,  5  Cush.  137  ;  Crossan  v. 
R.  R.,  149  Mass.  196  ;  Fitch  v.  Newberry,  1  Doug.  1 ;  Bowman  v.  Hilton,  11  Ohio,  303  ; 
Knight  V.  R.  R.,  13  R.  I.  572.  — Ed. 


296  ROBINS   AND   CO.    V.   GRAY. 

ROBINS   AND  CO.  v.  GRAY. 

Queen's  Bench,  1895. 

[1895,2  Q.B.  78.] 

Action  tried  before  Wills,  J.,  without  a  jury. 

The  plaintiffs  were  a  firm  of  dealers  in  sewing-machines  and  other 
articles,  and  in  1894  the}'  had  in  their  employment  one  Edward  Green 
as  a  commercial  traveller,  who  canvassed  for  orders  and  sold  their 
goods  upon  commission.  In  April,  1894,  Green  went  to  stay  for  the 
purposes  of  his  business  as  such  traveller  at  the  defendant's  hotel,  and 
remained  there  until  the  end  of  Jul}'.  While  he  was  there  the  plain- 
tiff's sent  to  him  from  time  to  time  certain  sewing-machines,  watches, 
chains,  and  musical  albums,  which  it  was  in  the  ordinary  course  of  his 
business  to  have  at  the  inn  for  the  purpose  of  selling  them  to  cus- 
tomers in  the  district.  At  the  end  of  July  Green  was  in  the  defendant's 
debt  for  board  and  lodging  to  the  amount  of  £4  Os.  8d.,  which  sum 
he  neglected  to  pay.  The  defendant  claimed  a  lien  in  respect  of  this 
debt  upon  certain  of  the  goods  which  had  been  so  sent  b}'  the  plain- 
tiffs by  Green,  and  detained  them  accordingly.  Before  the  goods  in 
question  had  been  received  into  the  hotel,  or  the  said  debt  had  been 
incurred,  the  defendant  had  been  expressly  informed  by  the  plaintiffs 
that  the  goods  were  the  plaintiffs'  property,  and-  not  the  property  of 
Green.     The  plaintiffs  brought  detinue. 

Wills,  .J.  The  law  applicable  to  this  case  is,  I  think,  clear.  The 
defendant  no  doubt  knew,  at  the  time  that  Green's  debt  to  him  was  in- 
curred, that  the  goods  upon  which  he  novv  claims  to  have  a  lien  were 
tlie  goods,  not  of  Green,  l)ut  of  his  principals.  But  that  fact  is,  in  my 
opinion,  immaterial.  The  goods  in  question  were  of  a  kind  which  a 
commercial  traveller  would  in  the  ordinary  course  carry  about  with 
him  to  the  inns  at  which  he  put  up  as  part  of  the  regular  ap[)aratus  of 
his  caUing,  and  which  the  innkeeper  would  consequently  be  bound  to 
receive  into  his  inn  and  to  take  care  of  while  they  were  there.  Here 
it  is  true  that  the  goods  were  not  brought  by  Green  to  the  inn  —  they 
were  sent  to  him  while  he  was  staying  there.  But  that  can  make  no 
difference.  The  defendant  was  bound  to  receive  them  and  take  care 
of  them,  as  a  part  of  his  dut}'  towards  his  guest.  It  follows  that  the 
lien  attached  to  them.  Knowledge  on  the  part  of  the  innkeeper  that 
the  goods  brought  by,  or  sent  to,  the  guests  are  not  the  guest's  prop- 
erty, is  in  my  judgment  material  only  where  tlie  goods  are  of  a  descrip- 
tion which  the  innkeeper  is  not  bound  to  receive,  such  as  the  piano  in 
the  case  relied  on  b}-  the  plaintiff. 

Judgment  for  the  defendant} 

1  Compare:  Robinson  v.  Walter,  3  Bulst.  209;  Broadvvood  v.  Granara,  10  Exch. 
417;  Threfall  r.  Borwiek,  L.  U.  7  Q.  B.  711  ;  Suiger  Co.  v.  Miller,  52  Minn.  516; 
Covington  v.  Newberger,  99  N.  C.  523;  Cook  v.  Prentice,  13  Ore.  422;  Gruinp  v. 
Showalter,  48  Pa.  St.  507;  Clayton  v.  Butterfield,  10  Rich.  L.  300;  Manning  v. 
Holleubeck,  27  Wis.  202.  —  Ed. 


BARRETT   V.   MARKET    STREET    RAILWAY.  297 


BARRETT  v.  MARKET  STREET  RAILWAY. 

Supreme  Court  of  California,   1889. 

[81   Cal.  296.1] 

Action  for  damages  for  forcible  ejection.  Plaintiff  tendered  con- 
ductor of  the  defendant  a  five  dollar  gold  piece  for  a  five  cent  fare. 
The  conductor  refused  it  and  thereupon  ejected  the  plaintiff  from  the 
car. 

Patkrson,  J.  .  .  .  The  question  on  the  merits  to  which  counsel  have 
mainly  directed  their  arguments  is,  whether  the  passenger  was  bound 
to  tender  the  exact  fare.  It  is  argued  for  the  appellant  that  the  rule  in 
relation  to  the  performance  of  contracts  applies,  and  that  the  exact 
sum  must  be  tendered.  But  we  do  not  think  so.  The  fare  can  be 
demanded  in  advance  as  well  as  at  a  subsequent  time.  Civ.  Code, 
sec.  2187.  And  so  far  as  this  question  is  concerned,  we  see  no  dif- 
ference in  principle  where  the  fare  is  demanded  in  advance  and  where 
it  is  demanded  subsequently.  If  it  be  demanded  in  advance,  there  is 
no  contract.  The  carrier  simply  refuses  to  make  a  contract.  Conse- 
quently the  rule  in  relation  to  the  performance  of  contracts,  whatever 
it  be,  has  no  necessary  application.  The  oI)ligation  of  the  carrier  in 
such  case  would  be  that  which  the  law  imposes  on  every  common 
carrier,  viz.,  that  he  must,  "if  able  to  do  so,  accept  and  carry  what- 
ever is  offered  to  him,  at  a  reasonable  time  and  place,  of  a  kind  that 
he  undertakes  or  is  accustomed  to  carry."  Civ.  Code,  sec.  2169. 
This  dut}-,  like  every  other  whicii  the  law  imposes,  must  have  a  reason- 
able performance.  And  we  do  not  think  it  would  in  all  cases  be 
reasonable  for  the  carrier  to  demand  the  exact  fare  as  a  condition  of 
carriage.  Suppose  that,  on  entering  a  street-car,  a  person  should 
tender  the  sum  of  ten  cents.  Would  it  be  reasonable  for  the  carrier  to 
refuse  it  ?  Prior  to  the  act  of  1878,  the  usual  fare  was  six  and  a 
quarter  cents.  In  such  a  case  it  would  be  unreasonable  for  the  carrier 
to  demand  the  exact  fare;  for  there  is  no  coin  in  the  country  which 
would  enable  the  passenger  to  answer  such  a  demand.  It  would  be 
impossible  for  the  passenger  to  furnish  such  a  sum.  Consequently,  to 
allow  the  carrier  to  maintain  such  a  demand  would  be  to  allow  him  to 
refuse  to  perform  the  dut}'  which  the  law  imposes  upon  him.  The  fare 
which  he  is  now  allowed  to  charge  is  no  longer  the  sum  mentioned. 
The  act  of  1878  forbids  him  to  "  charge  or  collect  a  higlier  rate  than 
five  cents."  But  there  is  nothing  to  prevent  a  lower  rate  from  being 
charged.  The  carrier  might  fix  it  at  four  and  a  quarter  cents.  And 
in  such  a  case  it  would  be  equally  impossible  for  the  passenger  to 
compl}'  with  such  a  demand  as  in  the  case  above  put.  Consequently, 
it  will  not  do  to  lay  down  the  rule  that  the  passenger  is  obliged  to 
tender  the  exact  fare. 

1  The  case  is  abridged.  —  Ed. 


208  WILLIAMS    V.    MUTUAL    GAS    CO. 

But  it  docs  not  follow  that  the  passenger  ma\'  tender  any  sura,  how- 
ever hirge.  If  he  shoukl  tender  a  hundred-dollar  bill,  for  example,  it 
would  be  clear  that  the  carrier  would  not  be  bound  to  furnish  change. 
The  true  rule  must  Ixj,  not  that  the  passenger  must  tender  the  exact 
fare,  but  that  he  must  tender  a  reasonable  sum,  and  that  tlie  carrier 
must  accept  such  tender,  and  must  furnish  change  to  a  reasonable 
amount.  The  obligation  to  furnish  a  reasonable  amount  of  change 
must  be  considered  as  one  which  the  law  imposes  from  the  nature  of 
the  business.  Judgment  for  }jlai7itiff.^ 


WILLIAMS  V.  MUTUAL    GAS   CO. 
Sdpreme   Court  of  Michigan,  1884. 

[52  Mich.  499.] 

Error  to  the  Superior  Court  of  Detroit.  (Chipman,  J.)  Jan.  22  — 
Jan.  29. 

Case.     Plaintiff  brings  error.     Affirmed. 

Sherwood,  J.  The  plaintiff,  in  the  month  of  November,  1879,  re- 
sided in  Detroit  and  was  in  possession  of  and  keeping  the  hotel  known 
as  the  Biddle  House,  containing  a  very  large  number  of  rooms,  all  of 
which  were  furnished  with  gas-pipes  and  fixtures  for  the  purpose  of 
ligliting  the  same,  and  which  had  been  so  lighted  for  man}'  years. 

The  defendant  corporation  was  duly  organized  under  the  Act  of  the 
Legislature  for  the  formation  of  gaslight  companies,  approved  Febru- 
ary 12,  1855,  and  located  in  Detroit.  On  the  15th  day  of  November 
aforesaid  the  defendant,  in  pursuance  of  said  Act  of  the  Legislature  and 
the  charter  and  by-laws  of  Detroit,  was  and  had  been  for  some  time 
previous  carrying  on  the  business  for  which  it  was  organized,  supply- 
ing the  citizens  at  hotels  and  private  dwellings  with  gas  in  such  quan- 
tities as  desired,  and  among  others  had  connected  its  pipes  with  those 
of  the  Biddle  House,  and  for  some  time  previous  had  been  suppl3"ing 
it  with  gas  as  its  proprietors  desired.  On  that  da}'  the  defendant  re- 
fused to  supply  the  Biddle  House  longer  unless  its  proprietor,  the  plain- 
tiff, would  keep  on  deposit  with  the  company  $100.  It  was  receiving 
at  that  time  about  860  worth  of  gas  per  week,  and  its  requirements 
were  increasing. 

The  plaintiff  regarding  the  demand  as  unreasonable,  declined  to 
make  tlie  required  deposit,  and  tendered  the  defendant  S75  and  de- 
manded that  the  com[)any  should  furnish  him  gas  at  the  Biddle  House 
to  that  amount.  This  the  defendant  refused  to  do  and  cut  off  the  ser- 
vice at  the  hotel. 

The  plaintiff  claims  that  it  was  the  defendant's  duty  to  furnish  him 
with  the  gas  required,  and  ui)on  the  terms  demanded;  that  he  has  suf- 

1   Compart:  Fulton  v.  Grand  TruLk  Co.,  17  U.  C,  Q.  B.  428.  — Ed. 


WILLIAMS    V.    MUTUAL    GAS    CO.  299 

fered  great  injury  to  his  business  in  consequence  of  the  defendant's 
neglect  so  to  do.  And  he  brings  his  suit  in  tliis  case  to  recover  liis 
damages.  A  trial  was  had  in  the  Superior  Court  of  Detroit,  and  the 
judge  directed  a  verdict  for  the  defendant.  The  plaintiff  brings  error 
and  the  case  is  now  before  us  on  a  bill  of  exceptions  containing  all  the 
testimon}'. 

The  questions  presented  and  argued  before  the  judge  of  the  Superior 
Court  by  counsel  for  defendant  were  —  First,  the  plaintiff  could  not 
recover  for  the  reason  the  defendant  was  under  no  legal  duty  or  obli- 
gation to  supply  any  citizen  of  Detroit  with  gas;  and,  second,  if  such 
dut}'  was  imposed  upon  the  defendant,  the  conditions  upon  which  the 
defendant  proposed  and  offered  to  perform  it  were  reasonable.  The 
court  disagreed  with  the  defendant's  counsel  in  the  first  position,  but 
sustained  them  in  the  second.  I  agree  with  the  judge  of  the  Superior 
Court  that  it  is  the  duty  of  the  defendant,  upon  reasonable  conditions, ' 
to  supply  the  citizens  of  Detroit  who  have  their  residences  and  places 
of  business  east  of  the  centre  of  ^Yoodward  Avenue,  with  gas  wher- 
ever the  defendant  has  connected  its  mains  and  service  pipes  with  the 
pipes  and  fixtures  used  at  such  residences  and  places  of  business  and 
the  owners  or  occupants  shall  desire  the  same. 

The  defendant  is  a  corporation  in  the  enjoyment  of  certain  rights 
and  privileges,  under  the  statutes  of  the  State  and  charter  and  by- 
laws of  the  cit}',  and  derived  therefrom.  These  rights  and  privileges 
were  granted  that  corresponding  duties  and  benefits  might  inure  to 
the  citizens  when  the  rights  and  privileges  conferred  should  be  exer- 
cised. The  benefits  are  the  compensation  for  the  rights  conferred 
and  privileges  granted,  and  are  more  in  the  nature  of  convenience 
than  necessity,  and  the  dut}'  of  this  corporation  imposed  cannot  there- 
fore be  well  likened  to  that  of  the  innkeeper  or  common  cari'icr,  but 
more  nearly  approximates  that  of  the  telegraph,  telephone,  or  mill- 
owner.  The  company,  however,  in  the  discharge  of  its  duty  may  g<i\- 
ern  its  action  by  reasonable  rules  and  regulations,  and  when  it  has 
done  so  all  persons  dealing  with  it,  as  well  as  the  company  itself,  must 
yield  obedience  thereto.  The  statute  under  which  the  defendant  coni- 
pan}'  is  organized  provides  it  may  ordain  and  enact  by-laws  for  that 
purpose;  but  the  record  discloses  no  such  action  taken  on  the  part  of 
the  defendant;  neither  does  it  show  any  general  action  or  custom  of 
the  compan}'  in  making  terms  with,  or  for  supplying  gas  to,  proprietors 
of  hotels  or  other  persons  except  as  required  in  this  case. 

The  president  of  the  defendant  company  was  sworn  and  examined, 
and  testified  that  the  defendant  made  weekly  or  monthly  collections 
for  gas  furnished.  He  further  said  that  the  defendant  refused  to  let 
the  plaintiff  have  a  supply  for  the  Biddle  House  unless  he  would  first, 
sign  a  contract  witli  the  company  therefor,  and  in  addition  thereto 
keep  on  deposit  with  the  company  the  sura  of  one  hundred  dollars 
so  long  as  it  furnished  iiim  witli  a  supply;  that  the  plaintiff  tendered 
thq  defendant  $75,  and  demanded  that  the  company  should  supply  the 


300  WILLIAMS   V.    MUTUAL    GAS   CO. 

house  and  offered  to  give  good  personal  seciirit}-  for  pa^'ment  and  per- 
formance on  his  part  to  the  extent  it  should  be  furnished  or  the  com- 
pan}-  require;  and  that  the  company  refuse  to  accept  the  terms  proposed 
b}'  plaintiff,  or  furnish  his  house  with  gas  as  required. 

This  corporation  is  authorized  and  permitted  to  do  business  in  De- 
troit only  upon  the  ground  of  public  convenience,  and  that  benefits  ma}- 
accrue  to  its  citizens. 

It  is  true  that  neither  by  the  charter  of  the  company,  its  articles  of 
association,  or  the  by-laws  of  the  citj'  authorizing  its  existence  there, 
has  it  the  exclusive  right  to  manufacture  and  sell  gas.  It  is,  how- 
ever, within  the  experience  of  us  all,  and  I  may  say,  I  think,  with  great 
propriety,  within  the  judicial  knowledge  of  the  courts,  that  the  manu- 
facture and  suppl}'  of  inflamable  gas  for  the  purpose  of  lighting  cities, 
villages,  stores,  hotels,  and  dwellings,  is  not  a  domestic  or  family  manu- 
facture. It  is  carried  on  almost  exclusivelj'  by  public  or  associated 
capital,  and  to  make  it  a  paying  industrj-  requires  the  exercise  and 
enjoyment  of  certain  rights  and  franchises  only  to  be  acquired  from 
municipal  or  State  authorit}'.  Associations  of  this  kind,  as  has  been 
well  said,  "  are  not  like  trading  and  manufacturing  corporations,  the 
purview  of  whose  operations  is  as  extensive  as  commerce  itself,  and 
whose  productions  ma}'  be  transported  from  market  to  market  through- 
out the  world."  It  is  not  a  trading  corporation,  its  product  is  de- 
signed for  the  citizen,  and  the  extent  to  which  it  is  used  depends  upon 
home  consumption  in  the  immediate  neighborhood  and  community  in 
which  the  manufacture  is  wrought.  It  is  in  the  strictest  sense  a  local 
commodity,  and  not  commercial.  It  can, only  be  used  by  consuming 
it,  and  hence  can  have  no  place  with  articles  of  trade.  The  success  of 
the  compan}'  greatly  depends  upon  the  necessity  of  the  citizens  in  the 
vicinit}'  of  its  location,  and  its  operations  ma}'  seriously  affect  the  [nib- 
lic  policy  and  individual  convenience  of  the  community.  The  nature 
of  the  article  made,  the  objects  of  the  company,  its  relations  to  the 
community,  and  the  rights  and  privileges  it  must  necessarily  exercise, 
give  the  company  a  public  character,  and,  to  a  certain  extent,  a  monop- 
oly which  can  never  be  tolerated,  only  upon  the  ground  of  some  cor- 
responding duty  to  meet  the  public  want.  Such  duty  rests  upon  this 
defendant,  and  I  think  it  requires  the  company  to  furnish  to  this  plain- 
tiff, at  the  Biddle  House,  the  supply  of  gas  demanded,  under  reason- 
able rules  and  regulations,  but  among  all  such  as  might  be  mentioned, 
it  is  with  the  defendant  to  adopt  and  rely  upon  such  as  it  may  select. 
This  is  its  privilege. 

The  duty  of  the  company  towards  the  citizen,  and  that  of  the  citizen 
towards  the  company,  is  somewhat  reciprocal,  and  any  rule  or  regula- 
tion or  course  of  dealing  between  the  parties  which  does  not  secure  the 
just  rights  of  both  ought  not  to  be  adopted,  and  cannot  receive  the 
sanction  of  the  courts. 

When  the  defendant  company  made  the  connection  of  its  service 
pipes  and  mains  with  the  pipes  and  fixtures  of  the  Biddle  House,  it  im- 


WHEELER    V.    NORTHERN    COLORADO    IRRIGATION    CO.  301 

posed  upon  itself  the  duty  to  supply  the  house  and  premises  upon 
reasonable  terms  and  conditions  with  such  amount  of  gas  as  the  owner 
or  proprietor  might  require  for  its  use,  and  pay  tor,  so  long  a,s  the  com- 
pany should  exist  and  do  business. 

If  the  defendant,  as  one  of  such  conditions,  required  the  plaintiff  to 
give  sufficient  security  that  he  would  make  such  payment  and  perform 
such  conditions,  before  making  such  service,  I  thing  it  would  have 
been  reasonable,  but  in  the  place  of  such  seenrit}'  the  defendant  de- 
manded a  deposit  of  mone}-  with  the  compan}-,  as  had  been  its  custom. 
This  the  company  had  a  right  to  do.  The  condition  was  a  reasonable 
one.  The  requirement  of  a  special  contract  between  the  parties,  in 
addition  to  the  deposit  of  mone}-,  may  not  be  unreasonable,  still  it  was 
quite  unnecessary.  The  law  implies  all  the  contract  needed,  and  courts 
will  enforce  it  in  all  cases  to  the  extent  necessary  to  secure  the  rights 
of  the  parties. 

I  think  the  judgment  of  the  Superior  Court  should  be  affirmed. 

The  other  justices  concurred. 


WHEELER  V.  NORTHERN   COLORADO    IRRIGATION  CO. 
Supreme  Court  of  Colorado,   1887. 

[10  Col.  582.1] 

Helm,  J.  .  .  .  The  pleadings  in  the  case  at  bar  show  that  respond- 
ent is  a  carrier  and  distributer  of  water  for  irrigation  and  other  pur- 
poses. That  its  canal,  two  years  ago,  was  upwards  of  sixty  miles  in 
length  and  capable  of  supplying  water  to  irrigate  a  large  area  of  land. 
That  relator  is  one  of  the  land-owners  and  consumers  under  the  canal, 
and  can  obtain  water  from  no  other  source  ;  also,  that  respondent  has, 
undisposed,  a  sufficient  quantity  to  suppl}'  his  wants.  That  he  ten- 
dered the  sura  of  $1.50  per  acre,  the  annual  rental  fixed  b^'  respondent, 
and  demanded  the  use  of  water  for  the  current  season,  but  declined 
to  pa}'  the  further  sum  of  SlO  per  acre  also  demanded,  and  to  sign  a 
certain  contract  presented  to  him  for  execution.  That  respondent 
refused,  and  still  refuses,  to  grant  relator's  request,  except  upon  com- 
pliance with  these  conditions.  The  remaining  essential  facts  will 
sufficiently  appear  in  connection  with  the  sjjecific  questions  of  law 
presented,  as  the}'  are  in  their  proper  order  discussed. 

Were  the  constitution  and  statutes  absolutel}-  silent  as  to  the  amount 
of  the  charge  for  transportation,  and  the  time  and  manner  of  its  col- 
lection, there  would  be  strong  legal  ground  for  the  position  that  the 
demand  in  these  respects  must  be  reasonable.  The  carrier  voluntarih' 
engages  in  the  enterprise  ;  it  has,  in  most  instances,  from  the  nature 

1  This  case  is  abridged.  —  Ed, 


302  WHEELER   V.    NORTHERN   COLORADO   IRRIGATION   CO. 

of  things,  a  monopoly  of  the  business  along  the  line  of  its  canal ;  its 
vocation,  together  with  the  use  of  its  [iroperty,  are  closely  allied  to 
the  public  interest;  its  conduct  in  connection  therewith  materially 
affects  the  community  at  large  ;  it  is,  I  think,  charged  with  what  the 
decisions  term  a  public  duty  or  trust.  In  the  absence  of  legislation 
on  the  subject,  it  would,  for  these  reasons,  be  held,  at  common  law,  to 
have  submitted  itself  to  a  reasonable  judicial  control,  invoked  and 
exercised  for  the  common  good,  in  the  matter  of  regulations  and 
ciiarges.  And  an  attempt  to  use  its  monopoly-  for  the  purpose  of  co- 
ercing compliance  with  unreasonable  and  exorbitant  demands  would 
lay  the  foundation  for  judicial  interference.  Munn  v.  Peo[)le,  4  Otto, 
1 13.  and  cases  cited  ;  Price  v.  Riverside  L.  L.  C,  56  Cal.  431  ;  C.  &  N. 
W.  R.  R.  Co.  0.  People,  5G  111.  365  ;  Vincent  v.  Chicago  &  Alton  R.  R. 
Co.,  49  111.  33. 

But  the  constitution  is  not  silent  in  the  particular  mentioned.  It 
evinces,  beyond  question,  a  purpose  to  subject  this,  as  other  branches 
of  the  business,  to  a  certain  degree  of  pul)lic  control.  As  we  have 
seen,  it  provides  for  a  tribunal  to  which  the  maximum  amount  of 
water  rates  may  be  referred,  in  case  of  dispute  between  the  carrier 
and  consumer.  And  I  think  that,  b\-  fair  implication,  it  forbids  the 
carrier's  enforcement  of  unreasonable  and  oppressive  demands  in  re- 
lation to  the  time  and  manner  of  collecting  these  rates.  Any  other 
view  would  accuse  the  convention  of  but  partially  doing  its  work.  For 
the  fixing  of  maximum  rates  would  be  protection,  grossly  inadequate, 
if  either  of  the  parties  might  dictate,  absolutely,  the  time  and  condi- 
tions of  payment.  The  priraar}'  objects  were  to  encourage  and  pro- 
tect the  beneficial  use  of  water ;  and  while  recognizing  the  carrier's 
right  to  reasonable  compensation  for  its  carriage,  collectible  in  a  rea- 
sonable manner,  the  constitution  also  unequivocalh'  asserts  the  con- 
sumer's rigiit  to  its  use,  upon  payment  of  such  compensation. 

Any  unreasonable  regulations  or  demands  that  operate  to  withhold 
or  prevent  the  exercise  of  this  constitutional  right  b}-  the  consumer 
must  be  held  illegal,  even  though  there  be  no  express  legislative  dec- 
laration on  the  subject. 

The  contract  which  respondent  required  relator  to  sign  and  agree 
to  comply  with,  as  a  condition  precedent  to  the  granting  of  his  request, 
contains  the  following  among  other  conditions :  That  he  buy  in  ad- 
vance "the  right  to  receive  and  use  water"  from  its  canal,  paying 
therefor  the  sum  of  SlO  per  acre;  also  that  he  further  pay  "annually 
in  advance,  on  or  before  the  1st  day  in  May  of  each  year,  such  reason- 
able rental  per  annum,  not  less  than  Si. 50  nor  more  than  $4  per  acre, 
as  may  be  established  from  year  to  year"  by  respondent.  If  we  hold 
respondent  to  the  literal  term  used  in  this  contract  we  must  declare 
the  810  exaction  illegal.  Respondent  cannot  collect  of  relator  the 
sum  of  810,  or  any  other  sum,  for  the  privilege  of  exercising  his  con- 
stitutional right  to  use  water. 

But  counsel  contended   in   argument  that  the  foregoing  expressions, 


WHEELKB    V.   NORTHERN    COLORADO   IRRIGATION   CO.  303 

quoted  from  respondent's  contract,  are  not  intended  to  require  the 
payment  of  $10  per  acre  for  a  right  to  use  water.  They  say  this  $10 
is  merely  a  portion  of  the  annual  "rental"  exacted  of  consumers  in 
advance  for  the  remaining  years  of  respondent's  cor[)orate  existence  ; 
that  instead  of  requiring,  say,  $2.50  per  acre  for  each  irrigating  sea- 
son in  turn,  respondent  has  seen  fit  to  divide  this  sum  into  two  parts, 
collecting  $1.50  annually,  and  the  residue  of  $1  each  for  the  remaining 
ten  yeais  of  its  corporate  life,  as  one  entire  sum  in  advance. 

This  construction  of  the  contract  may,  under  all  the  circumstances, 
seem  plausible,  though  I  doubt  if  the  courts  could  accept  it ;  but  if 
accepted  the  difficulty  under  which  respondent  labors  would  not  be 
obviated. 

If  the  carrier  maj-  collect  a  part  of  its  annual  transportation  charge 
in  advance  for  the  remaining  years  of  its  corporate  life,  it  may  collect 
all.  Suppose  the  company  just  organized  ;  under  counsel's  view  the 
consumer  may,  there  being  no  legislation  on  the  subject,  be  compelled 
to  pay  the  cost  of  delivering  water  to  him  for  the  entire  twenty'  years 
of  its  existence,  before  he  can  exercise  his  constitutional  right  during  a 
single  season. 

But  there  is  nothing  in  the  law  obliging  him  to  cultivate  his  land  for 
any  particular  period.  He  may  not  want  the  water  for  twenty  Aears, 
or  it  may  be  utterl}-  impossible  for  him  to  advance  so  large  a  sum  at 
once.  In  fact,  the  majority  of  those  who  till  the  soil  are  too  poor  to 
comply  with  such  a  demand  ;  to  sa}'  that  they  must  do  so  or  have  no 
water  is  to  deprive  them  of  their  right  to  its  use  just  as  effectually  as 
though  the  right  itself  had  no  existence.  It  is  true  these  people  would 
not  themselves  be  alile  to  bring  water  from  the  natural  streams  to  their 
farms,  and  without  the  carrier  they  might  be  compelled  to  abandon 
their  attempt  at  agriculture.  This  consideration,  however,  only  rein- 
forces the  position  that  a  reasonable  control  was  intended.  The  car- 
rier must  ])e  regarded  as  an  intermediate  agency  existing  for  the 
purpose  of  aiding  consumers  in  the  exercise  of  their  constitutional 
right,  as  well  as  a  private  enterprise  prosecuted  for  the  benefit  of  its 
owners.  Yet,  if  such  exactions  as  the  one  we  are  now  considering  are 
legal,  the  carrier  might,  at  its  option,  in  the  absence  of  legislation, 
effectuate  or  defeat  the  exercise  of  this  right ;  and  we  would  have  a 
constitutional  provision  conferring  an  affirmative  right,  subject  for  its 
efficacy  in  a  given  section  to  the  greed  or  caprice  of  a  single  individual 
or  corporation. 

Besides  the  extraordinary  power  mentioned,  the  carrier  would  also, 
under  counsel's  view,  be  able  to  consummate  a  most  unreasonable  and 
unjust  discrimination.  B.  could  ha\e  water  because  he  can  pay  for  its 
carriage  twenty  years  in  advance  ;  C.  could  not  have  water  because 
he  is  unable  to  pay  in  advance  for  its  carriage  beyond  a  season  or 
two. 

But,  say  counsel,  C.'s  only  remedy,  and  the  only  remedy  of  relator 
and  other  consumers  dissatisfied  with  the  carrier'a  terms,  is  by  applica- 


304  WHEELER    V.    NORTHERN    COLORADO    IliUIGATION   CO. 

tion  to  the  county  commissioners.  I  reply  :  First,  that  so  far  as  the 
present  case  is  concerned,  this  suggestion  embodies  but  little  consola- 
tion. Relator's  land  is  situate  in  Arapahoe  county.  The  statute,  as 
it  stood  when  the  proceedings  described  in  the  alternative  writ  took 
place,  did  not  permit  the  commissioners  of  that  county  to  act  with  re- 
ference to  respondent's  canal ;  while,  under  the  constitution,  the  com- 
missioners of  no  other  county  could  exercise  the  necessary  jurisdiction. 
It  was  utterly  impossible,  therefore,  for  relator  to  secure  relief  in  the 
manner  pointed  out,  and  if  the  courts  could  not  take  cognizance 
of  the  alleged  grievance  he  was  wholly  bereft  of  means  ot  redress. 
I  reply :  Second,  that  the  commissioners  may  be  empowered  to  fix 
the  maximum  amount  of  the  rate ;  that  is,  they  may  be  authorized 
to  announce  a  limit  beyond  which  the  carrier  cannot  go.  In  my 
judgment,  under  the  constitution  they  cannot  be  vested  with  authority 
to  establish  the  exact  rate  to  be  charged,  or  to  specify  either  the  time 
or  conditions  of  paj-ment.  The  time  and  conditions  of  payment  are 
proper  sulijects  for  legislation.  The  Legislature  doubtless  lias  author- 
ity to  say  that  the  rate,  whether  the  carrier  adopt  the  maximum  fixed 
by  the  commissioners  or  establish  one  below  such  limit,  shall  be  col- 
lected annually  in  advance  of  each  irrigating  season  ;  or  it  can  make 
any  other  reasonable  regulations  in  these  respects.  But  the  legislature 
itself  cannot  establish  the  unreasonable  rule  we  have  been  consider- 
ing, which  cnal)les  the  carrier  to  accomplish  a  wliolesale  discrimination 
between  consumers,  and  deny,  if  it  chooses,  to  a  mojorit}'  of  them, 
the  rights  secured  them  by  the  constitution.  A  regulation  or  rule 
entailing  such  results,  whether  established  by  the  legislature  or  carrier, 
must  be  regarded  as  within  a  constitutional  inhibition.  This  conclu- 
sion is  not  based  merely  upon  the  ground  of  private  inconvenience  or 
hardship;  it  rests,  as  will  be  observed,  upon  the  higher  and  stronger 
ground  of  conflict  with  the  beneficent  purpose  of  our  fundamental 
lavv. 

A  further  consideration  worthy  of  mention  in  passing,  bearing  at 
least  upon  the  unreasonableness  of  the  view  urged  upon  us,  is  the 
position  of  the  consumer  who  pays  the  charges  for  twenty-  years  in 
advance.  What  assurance  has  he  that  the  carrier  can  or  will  keep  its 
engagement  during  that  period  ?  Its  business  is  attended  with  con- 
siderable hazard,  and  requires  large  and  continuing  expenditures  of 
mone}'.  The  consumer  may  find  himself  without  water,  and  depend- 
ent, for  the  recovery  of  his  large  advancement,  upon  the  doubtful 
experiment  of  suit  against  an  insolvent  company. 

To  say  tiiat  the  courts  may  not  interfere,  under  the  circumstances 
above  narrated,  is  to  say  that  the  clear  intent  of  the  constitution  in 
relation  to  a  constitutional  right  may  be  disregarded  with  impunity, 
simply  because  no  express  iuhibitory  constitutional  or  statutory  provi- 
sion on  the  suV)jcct  can  he  found  ;  also  that,  for  a  like  reason,  one 
charged  with  an  important  duty  may  condition  its  performance  upon 
unreasonable  and  oppressive  demands. 


WHEELER  V.   NORTHERN  COLORADO  IRRIGATION  CO.     305 

I  do  not  usurp  the  province  of  the  Legislature  bj-  declaring  what 
would  be  reasonable  requirements  as  to  the  time  and  manner  of  collect- 
ing water  rates.  My  position  is  that,  for  the  reasons  given,  respond- 
ent's demand  of  810  per  acre,  as  an  advance  payment  of  part  of  the 
transportation  charge  for  the  remaining  years  of  its  corporate  life,  is 
illegal  as  well  as  unreasonable  and  oppressive. 

Respondent's  enterprise  is  of  great  public  importance  and  benefit. 
The  original  construction  of  its  canal  cost  large  sums  of  money,  and 
its  running  expenses  are  necessarily  heav}'.  For  a  considerable  period 
the  capital  invested  must  have  been  unproductive.  These  and  other 
circumstances  may  be  proper  subjects  for  consideration  by  the  com- 
missioners, when  called  upon  to  establish  a  maximum  rate.  And  when- 
ever they  become  appropriate  matters  for  judicial  cognizance,  the 
attention  deserved  will  be  received  from  the  courts.  But  no  expen- 
diture, however  vast,  and  no  inconvenience,  however  great,  can  justify 
or  legalize  the  exaction,  the  consumer  objecting,  of  the  demand  under 
consideration,  as  an  absolute  condition  precedent  to  use  for  the  cur- 
rent irrigating  season. 

It  is  not  necessary  to  consider  what  would  have  been  the  result  had 
respondent  charged  SH.oO  per  acre  for  the  irrigating  season  of  1886, 
instead  of  demanding  $1.50  for  that  season  and  $10  per  acre  as  part 
payment  for  future  3'ears.  Neither  is  it  necessary,  to  speculate  as  to 
what  respondent  would  have  charged  for  the  season  mentioned  had 
the  law  been  understood  by  its  officers  according  to  the  construction 
above  given.  In  view  of  the  pleadings,  and  especiall}'  of  the  language 
employed  in  respondent's  contract,  I  think  that  relator,  upon  the  show- 
ing made,  was  entitled  to  the  use  of  water  from  respondent's  canal 
for  the  irrigating  season  specified  in  the  alternative  writ.  This  con- 
clusion is  emphasized  by  the  defective  condition  of  the  commissioners' 
statute  prior  to  1887,  which  left  relator  helpless  so  far  as  action  by  that 
body  was  concerned.  I  also  think  that  mandamus  lay  for  the  enforce- 
ment of  his  rights  in  the  premises. 

The  demurrer  should  have  been  overruled  and  the  judgment  must, 
therefore,  be  reversed,  appellant  recovering  his  costs. 

But  courts  do  not  order  the  performance  of  impossible  acts.  This 
proceeding  was  instituted  for  the  purpose  of  compelling  respondent  to 
supply  relator  with  water  during  the  irrigating  season  of  1886.  Since 
then  respondent  ma}-  have  changed  its  annual  charge  or  rate;  besides, 
the  only  tender  or  demand  appearing  in  the  record  were  for  that  sea- 
son. To  order  compliance  with  relator's  request  for  1886  would  be 
absurd;  to  order  a  delivery  of  the  water  for  1888  would  be  unwar- 
ranted. To  permit  an  amendment  of  the  alternative  writ,  so  as  to 
cover  tlie  approaching  irrigating  season,  would  be  to  allow  the  substi- 
tution, in  this  proceeding,  of  a  new  and  wliolly  different  cause  of  action 
and  to  violate  an  established  rule  of  pleading. 

The  judgm,ent  is  reversed  and  the  cause  remanded. 

20 


306  LOUISVILLE    GAS   CO.   V.   DULANEY   AND   ALEXANDER. 

LOUISVILLE  GAS  CO.  v.  DULANEY  AND  ALEXANDER, 

Court  op  Appeals,  Kentucky,   1897. 

[100  Ky.  405.1] 

Hazelrigg,  J.,  delivered  the  opinion  of  the  court. 

The  charter  of  the  appellant  confers  on  it  the  exclusive  privilege  of 
erecting,  maintaining,  and  operating  gas  works  in  the  cit}'  of  Louisville 
for  the  manufacture  and  sale  of  gas  for  illuminating  purposes,  and  sec- 
tion 12  thereof  provides  that  "said  compan}'  shall  furnish  illuminating 
gas  to  private  consumers  who  may  apply  therefor,  under  reasonable 
rules  and  regulations  to  be  prescribed  by  the  company,  at  a  price  not 
to  exceed  one  dollar  and  thirty-five  cents  for  one  thousand  cubic  feet, 
less  a  discount  of  five  cents  per  one  thousand  cubic  feet,  to  all  persons, 
including  tlie  cit}',  except  as  to  street  laraj^s,  paying  their  bills  within 
five  days  after  same  are  due." 

The  appellees  are  private  consumers  of  the  appellant's  gas,  and  upon 
their  refusal  to  pay  a  charge  for  meter  rent  the  compan}'  was  about  to 
shut  off  the  su[)ply.  This  the  appellees  enjoined,  relying  on  the  provi- 
sions of  the  section  quoted  as  furnishing  the  total  charge  for  gas  to 
which  the}'  could  be  subjected. 

The  meter  rent  is  sought  to  be  upheld  as  a  "  reasonable  rule  and 
regulation,"  within  the  meaning  of  those  terms  in  the  charter,  and  is 
not  imposed  on  consumers,  as  appears  from  the  answer,  unless  they 
fail  to  use  a  certain  minimum  amount  of  gas  in  a  given  month. 

This  process  of  charging  rent  is  illustrated  by  the  memorandum  on 
the  back  of  the  gas  bills  on  file,  as  follows :  — 

"METER  RENT. 

''3  light  meter,  consuming  500  cubic  feet  or  less,  10  cents  per 
month. 

"  5  light  meter,  consuming  800  cubic  feet  or  less,  12  cents  per 
month. 

"10  light  meter,  consuming  1,000  cubic  feet  or  less,  15  cents  per 
month. 

"20  light  meter,  consuming  1,200  cubic  feet  or  less,  17  cents  per 
month. 

'•30  light  meter,  consuming  1,500  cubic  feet  or  less,  20  cents  per 
month. 

"45  light  meter,"  etc. 

Appellees,  Dulaney  and  Alexander,  used  (in  their  law  office)  a  three- 
light  meter,  and,  liaving  consumed  in  a  given  month  onl}'  200  cubic 
feet,  were  charged  ten  cents  in  addition  to  the  regular  price  of  tiie  gas. 
Appellee  Stone  used  a  thirty-light  meter  (in  his  residence),  and,  having 

1  Opinion  only  is  printed.  —  Ed. 


LOUISVILLE    GAS    CO.    V.   DULANEY    AND   ALEXANDER.  307 

consumed  less  than  1,500  cubic  feet  in  three  given  months,  was 
charged  sixtj-  cents  in  addition  to  the  price  of  gas. 

It  is  averred  in  the  answers  that  there  are  many  persons  in  the  city 
to  whose  fixtures  in  their  houses,  stores,  and  offices  the  api)ellant  has 
attached  its  pipes,  but  who  procure  their  lights  from  certain  electric 
light  companies,  and  who  use  the  gas  light  furnished  b}'  the  appellant 
only  occasionally,  and  when  by  accident  the\'  are  deprived  of  their 
electric  lights  ;  that  these  persons,  therefore,  use  a  verj-  small  quantit\- 
of  gas,  and  are  the  persons  mainly  affected  by  the  meter  charge  ;  that 
in  adopting  this  rule  to  furnish  gas  to  all  who  appl}-,  however  snjall  a 
quantity  ma}'  be  demanded,  and  fixing  a  uniform  charge  on  rent  of 
meters  wlien  a  minimum  amount  of  gas  is  consumed,  it  has  attempted 
in  good  faith  to  do  justice  to  all  without  discrimination.  A  demurrer 
was  sustained  to  the  answer  in  each  case,  and  the  injunction  per- 
petuated.    In  this  we  concur. 

The  gas  meter  is  the  propert}'  of  the  compan}',  and  is  as  necessary 
to  the  company  in  the  measurement  of  its  gas  as  are  its  works  fur  its 
manufacture.  At  least  some  process  of  measurement  is  as  necessarv, 
and  while  other  methods  have  been  used,  the  meter,  we  believe,  is 
regarded  as  the  best  known  method,  and  is  generally  adopted.  While 
the  consumer  may  cause  it  to  be  inspected,  and  may  test  the  accuracy 
of  its  work,  his  concern  is  only  to  ascertain  and  pay  for  what  gas  he 
has  consumed,  and  cannot  be  called  on  to  pay  for  the  apparatus  used 
in  its  measurement  any  more  than  he  can  be  made  to  pay  for  the 
machinery  used  in  its  manufacture.  He  is  required  to  pay  the  legal 
rate  for  the  quantity  consumed,  and  this  quantitj'  must  be  ascertained 
by  the  company  by  some  correct  method. 

The  company  can  only  charge  for  the  quantity  it  actually  furnishes, 
and,  to  ascertain  what  it  furnishes,  it  must  measure  it — how,  the  con- 
sumer does  not  care,  so  it  is  measured  correctly. 

The  appellees,  therefore,  are  entitled  to  have  their  gas  furnished  to 
them  alread\'  measured  ;  and,  for  it  so  measured,  they  can  be  made  to 
pay  at  the  price  of  Si. 35  per  thousand  feet,  and  no  more. 

If  the  price  of  gas  were  unrestricted  in  the  organic  law  of  the  cor- 
poration, the  rule  charging  a  higher  price  to  small  consumers  might  be 
upheld.  A  wholesale  mei'chant  sells  for  a  less  price  than  does  the 
retailer,  and  this  is  entirelv  reasonable.  The  question  would  then  be 
the  ascertainment  of  what  is  a  reasonable  rate,  and  this  is  the  question 
involved  in  the  case,  relied  on  b}-  the  appellant,  of  the  State  of 
Missouri  ex  rel.^  «S:c. ,  v.  Sedalia  Gas  Light  Co.,  34  ]Mo.  App.  501. 
There  the  company  required  the  payment  by  the  consumer  of  §1.25 
per  month  when  the  amount  of  gas  used  was  less  than  500  cubic  feet, 
and  this  sura  was  denominated  "•  rent  of  meter."  It  was  held  that  this 
charge  was  not  unreasonable,  and  that  while  the  sum  fixed  was  desig- 
nated as  '•'rent  of  meter,"  it  was  in  fact  pay  for  all  gas  consumed  by 
the  customer  to  the  extent  of  500  cubic  feet. 

Presumably  the  company  was  aware  when  it  obtained  its  charter  and 


308  GOULD   V.    EDISON   ELECTRIC    ILLUMINATING   CO. 

established  its  monopoly  that  there  would  be  small  consumers  as  well 
as  large  ones,  and  there  would  be  less  profit  in  furnishing  the  one  class 
than  tlie  other,  but  it  did  not  on  that  account  reject  the  charter  or 
obtain  the  right  to  add  to  the  price  of  the  small  consumer's  bill. 

The  judgments  are  affirmed. 


GOULD  V.  EDISON   ELECTRIC  ILLUMINATING   CO. 

Supreme  Court  of  New  York,   1899. 

[60  N.  Y.  S.  559.] 

/ 

Beekman,  J.  This  action  is  brought  for  a  mandatory  injunction  re- 
quiring the  defendant  to  reconnect  the  electric  light  appliances  in 
plaintiff's  apartments  with  the  conductors  of  the  defendant,  and  to 
resume  supplying  the  plaintiff  with  electric  light.  Damages  to  the 
extent  of  $500  are  also  demanded  for  the  refusal  of  the  defendant  to 
comply  with  plaintiff's  demand  for  such  service.  An  answer  has  been 
interposed,  which,  among  others,  contains  what  is  described  as  a  sec- 
ond and  separate  defence  to  the  amended  complaint.  To  this  the 
plaintiff  has  demurred  for  insufficiency.  Without  undertaking  to  state 
in  full  the  allegations  it  contains,  which  are  somewhat  voluminous,  it 
is  sufficient  to  say  that  the  controversy*  arises  upon  the  reasonable- 
ness of  one  provision  which  the  defendant  requires  the  plaintiff  to 
assent  to  as  a  condition  of  supplying  him  with  the  light  desired.  This 
provision  was  embodied  in  a  paper  tendered  to  the  plaintiff  for  signa- 
ture, described  in  the  answer  as  "the  usual  and  regular  application 
for  lighting  service  of  the  form  and  tenor  theretofore  adopted  by  the 
defendant,  and  required  of  all  its  customers."  The  stipulation  in  ques- 
tion, quoting  from  the  answer,  was  that  the  plaintiff  "would  use  elec- 
tric current  supplied  by  defendant  for  lighting  his  premises  for  the 
period  of  one  year  from  the  time  at  which  connection  between  the  de- 
fendant's mains  and  his  premises  should  be  made,  and  that  he  would 
pay  for  such  electric  current  used  b}-  him  during  each  month  on  pre- 
sentation of  l)ill  at  tlie  rate  of  one  cent  per  hour  for  each  sixteen  can- 
dle-power lamp,  or  the  equivalent  thereof,  as  measured  by  the  meter 
npon  the  said  premises  for  the  purpose  of  measuring  the  current  sup- 
plied under  such  application,  subject  to  certain  discounts  therein  set 
fortli."  It  was  further  [)rovided  that  "a  minimum  monthly  cliarge  of 
one  dollar  and  fifty  cents  ($1.50)  should  be  made  by  the  company  for 
each  separate  month  during  which  the  agreement  should  be  in  effect." 
It  is  tliis  last  provision  which  the  plaintiff  resists  as  unreasonal)le,  and, 
if  his  contention  in  that  regard  is  correct,  the  defendant  had  no  right 
to  require  his  assent  thereto  as  a  condition  of  pei'forming  the  legal  duty 
which  rests  upon  it  of  supplying  liglit  when  properly  demanded.  What 
that  duty  is  is  expressed  in  article  6,  §  65,  of  tlie  transportation  cor- 


GOULD   V.   EDISON   ELECTRIC   ILLUMINATING   CO.  309 

porations  law  (chapter  566,  Laws  1890),  which,  among  other  things, 
provides  that,  upon  appUcation  in  writing  of  the  owner  or  occupant  of 
an\-  building  or  premises  within  one  hundred  feet  of  the  wires  of  an}' 
electric-light  corporation,  and  the  payment  by  him  of  all  money  due 
from  him  to  such  corporation,  the  latter  shall  supply  electric  light  as 
may  be  required  for  lighting  such  building  or  premises  ;  and  that  if 
for  the  space  of  ten  days  after  such  application  and  the  deposit,  if 
any  be  required,  of  a  reasonable  sum,  which  the  company  is  entitled  to 
exact  as  securit}'  for  the  payment  of  its  compensation,  the  corporation 
shall  refuse  or  neglect  to  supply  electric  light  as  required,  such  corpoi'a- 
tion  shall  forfeit  and  pay  to  the  applicant  the  sum  of  SIO,  and  the  further 
sum  of  $5  for  every  day  thereafter  during  which  such  refusal  or  neg- 
lect shall  continue.  It  is  provided,  however,  that  no  such  corporation 
shall  be  required  to  lay  wires  necessary  to  comply  with  such  an  appli- 
cation where  the  ground  in  which  the  same  is  required  to  be  laid  shall 
be  frozen,  or  shall  otherwise  present  serious  obstacles  to  laying  the 
same;  nor  unless  the  applicant,  if  required,  shall  deposit  in  advance 
with  the  corporation  a  sum  of  money  sufficient  to  pay  the  cost  of  his 
portion  of  the  wire  required  to  be  laid,  and  the  expense  of  laying 
such  portion. 

It  will  be  observed  that  the  Legislature  has  not  undertaken  to  regu- 
late the  price  at  which  such  light  shall  be  supplied,  nor  to  limit  or 
define  what  compensation  the  corporation  ma}'  exact  for  the  service 
rendered  by  it.  In  that  regard  it  is  under  no  legal  restraint,  except 
that  its  charges  must  be  reasonable  and  uniform.  Whether,  in  a  given 
case,  they  are  so  or  not,  is  a  proper  subject  for  inquiry  and  determina- 
tion by  the  court,  in  view  of  the  quasi  public  nature  of  the  business, 
and  the  duty  towards  the  public  imposed  by  law  upon  the  corporation. 
Lough  V.  Outerbridge,  143  N.  Y.  271,  277,  38  N.  E.  292.  The  statute 
recognizes  the  right  to  charge  for  ligiit  consumed,  the  cost  and  ex- 
pense of  laying  wires,  and  a  rental  for  wire  and  apparatus  (Transpor- 
tation Corporations  Law,  art.  6,  §§  66,  68);  but  it  does  not  assume 
to  say  what  may  or  may  not  be  reserved  for  either,  nor  does  it  require 
the  amount  charged  to  be  separated  into  items  with  respect  to  its  con- 
stituent elements.  The  law  does  not  contemplate  that  the  defendant 
shall  do  business  at  a  loss.  It  is  expected  that  it  will,  and  it  is  en- 
titled to,  make  a  reasonable  profit  ui)on  its  venture,  and  the  sole  ques- 
tion in  such  a  case  as  this  is  whether  the  charge  made  is  unreasonable, 
considering  all  that  the  defendant  is  required  to  do  to  meet  each  cus- 
tomer's demand.  It  is  stated  in  the  fourth  paragraph  of  the  defence 
demurred  to  that  the  current  is  generated  by  dynamos  driven  by  steam 
engines  supplied  with  steam  from  boilers,  all  located  in  a  station  build- 
ing, and,  when  generated,  is  transmitted  directlv  to  the  defendant's 
underground  conductors  leading  to  the  premises  of  the  consumer;  that 
each  additional  lamp  connected  with  defendant's  system  necessitates 
an  additional  investment  by  it  in  distril»uting  conductors  and  local  ap- 
pliances of  about  820  in  addition  to  the  cost  of  generating  and  deliv- 


310  GOULD    V.    EDISON    ELECTRIC    ILLUMINATING   CO. 

ering  the  electric  current;  that  the  number  of  lamps  which  the  plaintiff 
desired  was  eleven,  and  that  the  total  additional  investment  tlius  maile 
necessar}'  in  order  to  comply  with  his  demand  for  service  was  at  least  the 
sum  of  $220.  How,  then,  can  it  be  said  that  a  fixed  charge,  not  based 
upon  actual  consumption,  is  of  itself  improper  or  unreasonable?  The 
customer  does  not  bind  himself  to  use  any  particular  amount  of  light, 
so  that  the  return  to  the  company,  based  on  actual  consumption,  would 
rest  entirely  upon  his  volition,  and  it  would,  therefore,  depend  upon 
liim  whether  the  service  he  has  required  the  corporation  to  be  in  con- 
stant and  immediate  readiness  to  render  is  profitable  or  unprofitable  to 
the  latter.  But  this  constant  condition  of  readiness  is  a  necessary 
and  unavoidable  obligation,  which  must  be  sustained,  in  order  to  meet 
instantaneously  the  demand  for  light,  which  the  consumer  is  entitled  to 
have  at  an\'  moment  that  he  wishes  it.  It  thus  forms  a  part  of  the 
service  to  be  rendered,  and  is  an  item  properly  to  be  considered  when 
the  reasonableness  of  the  charges  exacted  by  the  company  is  called  in 
question.  As  we  have  seen,  the  latter  is  not  confined  b}-  statute  to 
any  specific  rate,  nor  has  any  attempt  been  made  to  measure  or  limit 
the  compensation  which  such  corporations  may  lawfully  charge,  as  has 
been  done  in  the  case  of  gas  companies,  so  that  they  are  free  to  exact 
a  reasonable  return  for  the  service  requued,  which  includes,  as  1  have 
said,  not  only  the  actual  supply  of  electric  light,  but  the  readiness  to 
supph'  it,  coincidently  with  the  customer's  desire  to  have  it.  The  only 
condition  atfectiiig  the  right  is  that  the  compensation  must  be  reason- 
able, and,  what  is  also  incidental  to  this  requirement,  that  it  should  be 
uniform,  namely,  the  same  for  all  customers  similarly  situated.  Un- 
doubtedly, the  demand  which  those  desiring  to  use  it  are  entitled  to 
make  for  electric  light  imports  an  intention  on  their  part  to  consume 
it  to  some  extent,  and  that  each  lamp  ordered  is  requisite  for  that  pur- 
pose. The  cliarge  which  the  defendant  makes  is  based  primarily  upon 
actual  consumption  over  which  it  has  no  control.  One  consumer  with 
the  same  number  of  lamps  will  use  more  than  another.  In  both  cases 
the  return  to  the  company  may  be  remunerative,  or  the  use  of  one  may 
be  so  inconsiderable  as  to  ins'olve  a  loss.  To  meet  this  contingency 
the  monthly  minimum  charge  of  SI. 50  is  made.  But  it  must  be  borne 
in  mind  that  this  payment  is  not  in  addition  to  the  charge  for  actual 
consumption.  Where  light  is  consumed  which  entitles  the  company 
to  payment,  on  meter  measurement,  of  a  sum  per  month  equal  to  or  in 
excess  of  the  so-called  minimum  charge,  the  customer  pays  only  for 
the  light  he  has  actually  had;  so  that  this  fixed  charge  becomes  practi- 
cally operative  only  where  his  consumption  falls  below  the  extent  of 
use  which  it  measures.  I  can  see  nothing  unreasonable  in  this  when 
the  service,  as  I  have  defined  it,  which  the  company  is  obliged  to  ren- 
der, IS  considered.  It  is  not  a  penalty  for  a  failure  to  use  defendant's 
product,  but  is  properly  to  be  regarded  as  compensatory  for  that  part 
of  the  service  which  is  at  all  times  being  rendered  in  the  maintenance 
of  the  apparatus  and  connections  through  which  the  electric  current  is 


CLINTON    ELECTRIC   L.    H.    AND    P.    CO.    V.    SNELL.  311 

made  available  to  the  customer  foi*  the  production  of  light  at  his  plea- 
sure. The  plaintiff  distinctly  refused  to  pay  any  such  charge,  and  the 
defendant  was,  therefore,  justified  in  refusing  to  sup[)ly  him  with  light. 
Tiie  duty  resting  upon  the  company  under  the  statute  imports  a  recip- 
rocal one  on  the  part  of  the  customer  to  pa^-  for  the  service  which  he 
requires,  and,  where  the  latter  refuses  in  advance  to  pay  charges  which 
appear  to  be  reasonable,  the  compan}'  is  under  no  obligation  to  render 
the  service  demanded.  As  the  defence  in  question  is  sufficient  upon  its 
face,  it  follows  that  the  demurrer  thereto  must  be  overruled. 

The  demurrer  is  therefore  overruled,  with  costs,  and  judgment  or- 
dered in  favor  of  the  defendant  accordingly. 


CLINTON   ELECTRIC   L.  H.  AND  P.  CO.  v.  SNELL. 

Appellate   Court,  Illinois,   1900. 

[95  ///.  App.  552.] 

Mandamus.  Appeal  from  the  Circuit  Court  of  De  Witt  County  ;  the 
Hon.  William  G.  Cochran,  Judge,  presiding.  Heard  in  this  court  at 
the  November  term,  1900.  Reversed  and  remanded  wnth  directions. 
Opinion  filed  June  10,  1901. 

Mr.  Presiding   Justice    Harker  delivered  the  opinion  of  the  court. 

Appellant  owns  and  operates  an  electric  light  plant  in  the  city  of 
Clinton,  Illinois.  Appellee  is  the  owner  of  a  large  dwelling  house,  oc- 
cupied by  himself  and  family,  situated  on  one  of  the  principal  streets 
of  Clinton.  Appellee  having  wired  his  house  for  electric  lighting, 
called  upon  appellant  to  connect  his  house  with  its  plant  and  furnish 
him  light  upon  the  same  terms  required  from  other  citizens  in  the 
vicinity.  Appellant  refused  unless  appellee  would  furnish  or  pay  for 
a  transformer.  A  transformer  is  a  coil  of  copper  wire  imbedded  in  a 
sheet  iron  box  and  usually  placed  on  a  pole  outside  the  building  to 
be  lighted.  Its  object  is  to  reduce  the  voltage  of  electricit}-  as  it  passes 
from  the  main  wire  to  the  wire  connecting  the  building.  Without  it 
there  would  be  greater  danger  of  fire.  The  evidence  shows  that  the 
cost  of  a  transformer  of  the  size  necessary  for  appellee's  house  is 
twenty-five  dollars.  Appellee  declined  to  furnish  or  pay  for  one  and 
instituted  this  proceeding  b}-  mandamxis  in  the  Circuit  Court  to  com- 
pel appellant  to  connect  his  house  with  its  plant  and  furnish  him  with 
light.  The  cause  was  submitted  to  a  jury  to  find  the  material  facts, 
who,  to  that  end,  answered  twenty-three  special  interrogatories  pro- 
pounded. The  court  then  held  upon  propositions  of  law  and  rendered 
judgment  awarding  a  peremptory  writ  of  mandaynus  compelling  ap- 
pellant to  furnish  electricity  for  appellee's  house  without  payment  for  a 
transformer. 

In  their  printed  brief  and  argument,  counsel  for  appellant  urge  that 


312  CLINTON    ELECTRIC    L.    H.    AND    P.    CO.    V.    SNELL. 

some  of  the  special  findings  of  the  jurj'  are  contradictor}-,  that  some 
are  not  material  and  tliat  others  are  against  the  evidence.  They  also 
urge  that  the  court  erred  ui  refusing,  as  law,  certain  propositions  ten- 
dered. In  the  view  we  take  of  the  facts  and  tlie  law  of  the  case,  it  is 
unnecessar}-  to  discuss  in  detail  the  special  findings  of  the  jury  or  the 
holdings  of  the  court  on  propositions  of  law. 

There  is  no  statute  of  this  State  regulating  the  manner  under  which 
electric  liglit  companies  shall  do  business.  Such  a  company  can  fix 
its  rates  and  establish  its  rules,  subject  only  to  the  common  law  and 
such  regulations  as  ma}'  be  im[)osed  by  the  muncipality  which  grants 
its  franchise.  The  common-law  rule  against  discrimination  does 
not  require  a  gas  light  company  or  an  electric  light  company  to  treat 
all  patrons  alike.  It  may  bestow  favors  upon  one  -  that  it  withholds 
from  others,  providing  it  deals  justly  and  reasonably  b}-  the  others. 
The  discrimination  which  the  law  forbids  and  on  account  of  which 
the  court  will  be  justified  in  interference  by  numdcmms  must  be  un- 
just or  unreasonable.  The  object  of  the  rule  is  to  protect  patrons 
from  extortion  b}'  persons  and  corporations  enjoying  exclusive  fran- 
chises and  privileges. 

Tlie  evidence  shows  that  before  the  commencement  of  this  suit,  ap- 
pellant had  been  in  the  business  of  wiring  houses  and  furnishing  elec- 
tricity for  lighting  in  Clinton  for  ten  or  twelve  years.  During  that  time 
it  had  wired  280  houses,  for  which  it  received  a  profit.  To  such  of  its 
patrons,  it  furnished  transformers  free.  Some  fifteen  or  twenty  other 
houses  were  wired  by  other  parties.  For  some  of  the  number  trans- 
formers were  furnished  by  appellant  free,  while  others  were  charged 
for  them. 

It  is  clear  from  the  proofs  that  appellant  exacted  the  payment  for  a 
transformer  from  appellee  because  he  had  elected  to  wire  his  own  house. 
It  had  the  legal  right  to  do  so  unless  a  transformer  was  unnecessary  for 
appellee's  house  or  its  demands  upon  appellee  amounted  to  extortion. 
The  house  is  a  very  large  one  and  there  are  so  many  lights  to  be  sup- 
plied that  the  employment  of  an  individual  transformer  is  necessary. 
There  was  no  discrimination,  whatever,  in  furnishing  to  patrons  who 
employed  appellant  to  wire  their  houses  for  a  profit,  the  use  of  a  trans- 
former free,  and  charging  the  cost  of  one  to  those  who  wired  their  own 
houses.  The  discrimination,  if  an}-,  consisted  in  furnishing  the  appli- 
ance free  to  some  and  charging  other  of  the  last  named  patrons  with 
the  cost  of  it.  As  we  look  upon  it,  those  who  receive  the  use  of  the 
transformers  free  were  simply  fortunate  in  having  a  favor  granted  to 
them,  and  there  was  no  extortion  in  requiring  others  to  pay. 

It  is  fundamental  that  a  peremptory  writ  of  mandamus  will  be 
granted  only  where  the  petitioner  shows  a  clear  and  undoubted  right 
to  it.  We  are  of  the  opinion  that  the  discrimination  complained  of 
was  neither  unjust  nor  unreasonable.  The  judgment  will  therefore  be 
reversed  and  the  cause  remanded,  with  directions  to  the  Circuit  Court 
to  deny  the  writ  and  dismiss  the  petition. 

Reversed  and  remanded. 


SMITH   V.   CAPITAL   GAS   CO.  313 


SMITH  V.  CAPITAL   GAS    CO. 
Supreme  Court  of  California,  1901. 

[132  Cal.  209.1] 

Smith,  C.  The  suit  was  brought  to  recover  of  the  defendant  liqui- 
dated damages,  —  amounting  to  thirteen  hundred  dollars, — alleged 
to  be  due  under  the  provisions  of  §  629  of  the  Civil  Code,  for  refusal 
to  furnish  gas  to  the  plaintiff.  The  judgment  was  for  the  defendant, 
and  the  plaintiff  appeals.  The  provision  of  the  code  in  question  is, 
that,  "upon  the  application,  in  writing,  of  the  owner  or  occupant  of 
any  building  or  premises  distant  not  more  than  one  hundred  feet  from 
any  main  of  the  corporation,  .  .  .  the  corporation  must  supply  gas  as 
required  for  such  building  or  premises,"  &c.  ;  and  further,  that  "if, 
for  the  space  of  ten  days  after  such  application,  the  corporation  re- 
fuses or  neglects  to  supply  the  gas  required,  it  must  pa}-  to  the  appli- 
cant the  sum  of  fifty  dollars  as  liquidated  damages,  and  five  dollars  a 
day  as  liquidated  damages  for  everv  day  such  refusal  or  neglect  con- 
tinues thereafter."  The  case  as  presented  b}'  the  findings  is  as  fol- 
lows :  — 

The  defendant  is  a  corporation  engaged  in  supplying  the  city  of  Sac- 
ramento with  gas,  and  the  plaintiff  is  an  occupant  of  premises  within 
a  hundred  feet  of  one  of  its  mains.  September  22,  1898,  the  plaintifl 
served  on  the  defendant  a  written  notice,  which  (omitting  date,  address, 
and  signature)  was  as  follows:  "You  will  please  immediately  supply 
me  with  gas  for  the  premises  occupied  by  me,"  &c.  (describing  them). 
The  defendant,  in  reply,  within  ten  days  thereafter,  "  notified  plaintiff 
that  it  would  supply  plaintiff  with  gas  for  said  building  and  premises, 
if  plaintiff  would  furnish  a  meter,  or  agree  to  pay  defendant  fifty  cents 
per  month  as  rent  for  a  meter,"  and  "  plaintiff  refused  to  furnish  a 
meter,  or  to  pay  said  rent  to  the  defendant."  The  rent  demanded 
was  found  by  the  court  to  be  "  fair  and  equitable,"  representing  the 
monthly  cost  of  the  meter  to  the  defendant,  for  care,  labor,  interest  on 
investment,  &c.  But  it  is  found  that  the  defendant  had  no  rule  re- 
quiring payment  of  rent  for  meters,  nor  did  it  charge  its  otlier  cus- 
tomers therefor.  The  defendant,  it  seems,  had,  prior  to  September  8, 
1898,  been  supplying  plaintiff  with  gas  ;  but  the  plaintiff,  during  the 
3'ear  preceding  that  date,  had  used  electrical  lights  mainlv  and  almost 
exclusively,  and  the  total  amount  of  gas  used  on  the  premises  amounted 
only  to  the  value  of  81. 7.5;  and  the  defendant,  on  that  date,  had  re- 
moved the  meter,  thereby  depriving  the  plaintiff  of  gas.  It  is  found 
—  in  a  passage  following  the  statement  of  the  above  facts,  and  the 
written  notice  —  that  "said  gas"  was  and  is  necessary  for  the  plain- 
tiffs use  on  the  premises  in  question.     But —  unless  this  expression  be 

1  Opinion  only  is  printed.  —  Ed. 


314  SMITH    V.    CAPITAL    GAS    CO. 

construed  as  referring  to  the  gas  used  prior  to  September  8,  1898,  —  it 
does  not  appear  how  much  or  what  gas  was  needed. 

There  can  be  no  doubt,  I  think,  of  the  right  of  gas  companies,  ordi- 
narily, to  charge  rents  for  meters.  Civ.  Code,  §  632  ;  Sheward  v. 
Citizens'  Water  Co,  90  Cal.  641.  But  the  point  is  made  by  the  ap- 
pellant, that,  in  charging  him  with  such  rent,  when  other  consumers 
were  not  required  to  pa}'  it,  "  the  defendant  arbitrarily  discriminated 
against  the  plaintiff."  But  I  do  not  think  this  is  the  case.  Ordinarily, 
compensation  for  the  meter  is  received  from  the  return  for  the  gas 
consumed.  But  here  the  value  of  the  gas  consumed  during  the  year 
preceding  the  removal  of  the  meter  was  not  equal  to  a  sixth  part  of 
the  annual  expense  of  the  meter.  The  plaintiff's  written  demand  did 
not  specify,  even  in  a  general  way,  the  amount  of  gas  required,  or  even 
that  he  required  more  gas  than  he  had  been  in  the  habit  of  using,  An- 
drews V.  North  River,  &c.  Co.,  51  N.  Y.  Supp.  872  ;  and  the  defendant 
was  quite  justified  in  supposing  that  he  required  no  more.  Code  Civ. 
Proc,  §  1963;  1  Greenleaf  on  Evidence,  §  41.  A  "state  of  mmd 
once  proved  to  exist  [is]  presumed  to  remain  such  until  the  contrar}' 
appears."  1  Greenleaf  on  Evidence,  §  42.  The  case,  therefore, 
stands  as  though  the  plaintiff's  demand  had  been  simply  for  the  res- 
toration of  the  status  quo  —  i.  e,  for  the  use  of  the  quantity  of  gas 
he  had  been  using.  The  plaintiff's  case  was  therefore  altogether  ex- 
ceptional, and,  we  may  assume,  unique.  For  there  is  neither  finding 
nor  allegation  that  there  were  any  others  in  the  same  category,  and  if 
none,  then  there  was  no  discrimination  ;  and  if  there  were  an}'  such,  it 
devolved  on  the  plaintiff  to  allege  and  to  prove  it;  for  to  render  one 
liable  for  a  penalty,  every  material  fact  necessar}'  to  bring  the  case 
within  the  statute  must  be  affirmatively  shown.  Conly  v.  Clay,  90  Hun, 
20  ;  Village  of  Hardwick  v.  Vermont  T.  and  T.  Co.,  70  Vt.  180  ;  40 
Atl.  Rep.  169.  The  defendant  was  justified,  then,  in  notifying  the 
plaintiff  that  he  would  be  charged  with  rent  for  the  meter,  if  supplied 
by  the  company  ;  and  the  plaintiff's  refusal  to  agree  to  this  was  its 
sufficient  justification  in  refusing  to  furnish  gas. 

I  advise  that  the  judgment  be  affirmed. 

Gray,  C,  and  Cooper,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is 
affirmed.     McFarland,  J.,  Henshaw,  J.,  Temple,  J. 

Hearing  in  hanc  denied} 

1  Compare:  Sheward  v.  Water  Co.,  90  Cal.  640;  Gas  Co.  v.  Dulaney,  lOOKy.  40.5; 
S.  V.  Gas  Light  Co,  34  Mo.  App.  501  ;  S.  v.  Gas  Light  Co.,  34  Ohio  St.' 572;  Andrews 
V.  Light  Co.,  18  N.  Y.  S.  50.  — Ed. 


CANADA,    ETC.   RAILWAY    CO.   V.    INTERNATIONAL   BRIDGE   CO.      315 


CANADA  SOUTHERN  RAILWAY  CO.  v.    INTERNATIONAL 

BRIDGE  CO. 

Privy  Council,  1883. 
[8  App.  Cas.  723.1] 

Br  the  decree  in  the  first  appeal  it  was  declared  that  the  respondent 
International  Bridge  Compan}-  was  entitled  to  certain  tolls  claimed  b}' 
it  from  the  a[)pellants  for  the  use  by  them  of  the  respondent's  bridge, 
and  consequential  relief. 

The  appellant  is  a  corporation  under  the  laws  of  the  Dominion  of 
Ca,nada.  Its  railway-  is  adjacent  to  the  Canadian  terminus  of  the 
International  Bridge  crossing  the  River  Niagara.  It  also  works  a  line 
of  railway  from  such  terminus  to  Lake  Ontario.  The  International 
Bridge  has  one  of  its  termini  in  tlie  Province  of  Ontario  and  the  other 
in  the  State  of  New  York.  The  bridge  and  approaches  are  owned  and 
maintained  b}-  the  International  Bridge  Company,  which  is  incorpo- 
rated under  the  laws  of  the  Dominion  of  Canada  and  also  under  the 
laws  of  the  State  of  New  York,  and  an  agreement  made  thereunder: 
see  an  Act  of  the  State  of  New  York  passed  on  the  17th  of  April,  18,57, 
intituled  "  An  Act  to  incorporate  the  International  Bridge  Company," 
and  an  Act  of  the  Legislature  of  the  former  province  of  Canada,  20 
Vict.  c.  227.  See  further  an  Act  of  the  State  of  New  York,  passed 
May  4,  18G9,  and  Canadian  Act,  32  &  33  Vict.  c.  65,  in  virtue  whereof 
an  agreement  or  act  of  consolidation,  dated  the  18th  of  May.  1870, 
■was  entered  into  from  which  the  International  Bridge  Compan}-  derived 
its  origin. 

The  questions  decided  in  this  appeal  are,  first,  as  to  the  construction 
of  the  Acts  of  the  Canadian  Legislature,  viz.,  20  Vict.  c.  227,  sects.  14, 
16,  and  22  Vict.  c.  124  (which  amended  the  former  act),  sect.  2.  as  to 
the  right  to  demand  tolls;  second,  whether  the  tolls  are  reasonable  or 
are  shown  to  l)e  unreasonable. 

The  Loro  Chancellor  (Earl  of  Selbocrne).  ...  It  certainly 
appears  to  tlieir  Lordshi[)s  that  the  princi[)le  must  be,  when  reasonable- 
ness comes  in  question,  not  what  profit  it  ma}-  be  reasonable  for  a  com- 
pany to  make,  but  wiiat  it  is  reasonable  to  charge  to  the  person  who 
is  charged.  That  is  the  only  thing  he  is  concerned  with.  They  do  not 
say  that  the  case  may  not  be  imagined  of  the  results  to  a  company 
being  so  enormously  disproportionate  to  the  money  laid  out  upon  the 
undertaking  as  to  make  that  of  itself  possilily  some  evidence  that  the 
charge  is  unreasonable,  with  reference  to  the  person  against  whom  it 
is  charged.  But  that  is  merely  imaginary.  Here  we  have  got  a  [xm- 
fectly  reasonable  scale  of  charges  in  everything  which  is  to  be  re- 
garded as  material  to  the  person  against  whom  the  charge  is  made. 

1  This  case  is  abriilged.  —  Ed. 


316  COTTING   V.   GODDARD. 

One  of  their  Lordships  asked  counsel  at  the  bar  to  point  out  which  of 
these  charges  were  unreasonable.  It  was  not  found  possible  to  do  so. 
In  point  of  fact,  ever}-  one  of  them  seems  to  be,  when  examined  with 
reference  to  the  service  rendered  and  the  benefit  to  the  person  receiving 
that  service,  perfectly  unexceptionable,  according  to  any  standard  of 
reasonableness  which  can  be  suggested.  That  being  so,  it  seems  to 
tlieir  Lordships  that  it  would  be  a  very  extraordinary  thing  indeed, 
unless  the  Legislature  liad  expressly  said  so,  to  hold  that  tlie  persons 
using  the  bridge  could  claim  a  riglit  to  take  the  whole  accounts  of  the 
company,  to  dissect  their  capital  account,  and  to  dissect  their  income 
account,  to  allow  this  item  and  disallow  that,  and,  after  manipulating 
the  accounts  in  their  own  way,  to  ask  a  court  to  say  that  the  persons 
who  have  projected  such  an  nndertaking  as  this,  who  have  encountered 
all  the  original  risks  of  executing  it,  who  are  still  subject  to  the  risks 
which  from  natural  and  other  causes  every  such  undertaking  is  subject 
to,  and  who  may  possiblv,  as  in  the  case  alluded  to  by  the  learned 
judge  in  the  court  below,  the  case  of  the  Tay  Bridge,  have  the  whole 
thing  swept  away  in  a  moment,  are  to  be  regarded  as  making  unreason- 
able charges,  not  because  it  is  otherwise  than  fair  for  the  railway  com- 
pany using  the  bridge  to  pay  those  charges,  but  because  the  biidge 
company  gets  a  dividend  which  is  alleged  to  amount,  at  the  utmost, 
to  fifteen  per  cent.  Their  Lordships  can  hardly  characterize  that  argu- 
ment as  anything  less  than  preposterous. 

Their  Lordships  will,  therefore,  humbly  advise  Her  Majesty  that  the 
judgment  of  the  Court  of  Appeal  of  the  Province  of  Ontario  should  be 
affirmed,  and  both  these  appeals  dismissed  with  costs. 


COTTING  V.   GODDARD. 
Supreme  Court  op  the  United  States,   190L 

[22  S.  C.  Rep.  30.1] 

Appeal  from  a  decree  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  Kansas  dismissing  a  complaint  in  a  suit  to  restrain  the 
enforcement  of  a  statute.  Beversed. 

Statement  by  Mr.  Justice  Brewer  : 

In  March,  1897,  Charles  U.  Cotting,  a  citizen  of  the  State  of  jMassa- 
chusetts,  filed  in  the  Circuit  Court  of  the  United  States  for  the  district 
of  Kansas,  a  bill  of  complaint  against  the  Kansas  City  Stock-Yards 
Company,  a  corporation  of  the  State  of  Kansas,  and  certain  officers 
of  that  company,  and  Louis  C.  Boyle,  Attorney-General  of  the  State 
of  Kansas.     A  few  days  later  Francis  Lee  Higginson,  a  citizen  of  the 

^  This  case  is  abridged  —  Ed. 


COTTING   V.    GODDARD.  317 

State  of  Massachusetts,  filed  a  bill  of  complaint  in  the  same  court  and 
against  the  same  parties. 

These  suits  were  subsequentlj-  ordered  by  the  court  to  be  consoli- 
dated, and  were  thereafter  proceeded  in  as  one. 

The  plaintiffs  respectively  alleged  that  they  were  stockholders  of  the 
Kansas  City  Stock-Yards  Company,  and  that  the  suits  were  brought  in 
tlieir  own  behalf  and  that  of  other  stockholders  having  a  like  interest, 
who  might  thereafter  join  iu  the  prosecution  thereof.  The  main  pur- 
pose of  the  suits  was  to  have  declared  invalid  a  certain  act  of  the 
Legislature  of  the  State  of  Kansas  approved  March  3,  1897,  entitled 
"  An  Act  Defining  What  shall  Constitute  Public  Stock-Yards,  Defining 
the  Duties  of  the  Person  or  Persons  Operating  the  Same,  and  Regulat- 
ing All  Charges  thereof,  and  Removing  Restrictions  in  the  Trade  of 
Dead  Animals,  and  Providing  Penalties  for  Violations  of  This  Act." 

A  temporary  restraining  order  was  granted,  and  subsequently  a 
motion  for  a  preliminary  injunction  was  made.  Pending  that  motion 
the  court  appointed  a  special  master,  with  power  to  take  testimony 
and  report  the  same,  with  his  findings,  as  to  all  matters  and  things  in 
issue  upon  the  hearing  of  the  preliminary  injunction  prayed  for.  79 
Fed.  679.  On  August  24,  1897,  the  special  master  filed  his  report. 
On  October  4,  1897,  the  motion  for  a  preliminary  injunction  was  heard 
on  affidavits,  the  master's  report,  exceptions  thereto  on  behalf  of  both 
parties,  and  arguments  of  counsel.  The  motion  was  refused  and  the 
restraining  order,  which  had  remained  in  force  in  the  meantime,  was 
set  aside.     82  Fed.  839. 

A  stipulation  was  thereupon  entered  into  that  the  defendants  should 
forthwith  file  their  answers  to  the  bills  ;  that  replications  thereto  should 
be  immediately  filed  ;  and  that  the  cases  thus  put  in  issue  should  be 
heard  on  final  hearing,  upon  the  pleadings,  proofs,  master's  report,  and 
exhibits,  without  further  testimon}-  from  either  party. 

On  October  "IS,  1897,  after  argument,  the  court  dismissed  the  bills 
of  complaint.     82  Fed.  850. 

Mr.  Justice  Brewer.  ...  In  this  case,  as  heretofore  indicated,  a 
volume  of  testimony  has  been  taken,  mainly  upon  the  question  of  the 
cost  and  value  of  tlie  stock-yards,  and  the  effect  upon  the  income  of 
the  company  by  reason  of  the  proposed  reduction.  This  testimony  was 
taken  before  a  master,  with  instructions  to  report  the  cost  of  the  stock- 
yards, the  present  value  of  the  property,  the  receipts  and  expenditures 
thereof,  the  manner  of  operation,  and  such  other  matters  as  might  be 
pertinent  for  a  determination  of  the  case.  Stated  in  general  terms,  his 
findings  were  that  the  value  of  the  proi)erty  used  for  stock-yard  pur- 
poses, including  the  value  of  certain  supplies  of  feed  and  materials 
which  were  on  hand  December  31,  1896,  is  $5,388,003.25;  that  the 
gross  income  realized  by  the  stock-yards  company  during  the  year 
1896,  which  was  taken  as  representing  its  average  gross  income,  was 
$1,012,271.22.  The  total  expenditures  of  the  company  for  all  purposes 
during  the  same  period  amounted  to  $535,297.14,  —  thus  indicating  a 


318  COTTING    V.    GODDAIID. 

net  income  for  the  year  of  $470,974.08.  The  court,  however,  increased 
the  esthnate  of  the  net  income  by  aciding  to  the  ex[)en(litiires  the  sum 
of  $13,584,65,  expended  in  repairs  and  construction,  thus  placing  tlie 
net  income  at  the  amount  of  $590,558.73.  If  tiie  rates  prescribed  by 
the  Kansas  statute  for  yarding  and  feeding  stock  liad  been  in  force  dur- 
ing the  year  1896  the  income  of  the  stocli-yards  company  would 
liave  been  reduced  that  year  $300,651.77,  leaving  a  net  income  of 
$289,910.96.  This  would  have  yiekled  a  return  of  5.3  per  cent  on  the 
value  of  property  used  for  stock-yard  purposes,  as  fixed  In'  tlie  master. 
Or  if  the  capital  stock  be  taken  after  deducting  therefrom  sucli  portion 
thereof  which  represents  property  not  used  for  stock-yard  purposes,  the 
return  would  be  4.6  per  cent. 

Counsel  for  appellants  challenge  the  correctness  of  these  findings,  and 
seek  to  show  by  a  review  of  the  testimou}'  that  no  such  per  cent  of  re- 
turn on  the  real  value  of  the  investment  would  be  received  by  the  com- 
pany in  case  the  proposed  reduction  is  put  into  effect.  But,  without 
stopping  to  enter  into  the  inquir}'  suggested  by  their  contention,  it  is 
enough  for  our  present  pui'pose  to  state  in  general  the  conclusions  of 
the  master  and  the  court. 

On  the  other  hand,  it  is  shown  b}'  the  findings,  approved  l»y  the 
court,  that  the  prices  chargeil  in  these  stock-yards  are  no  higher,  and 
in  some  respects  lower,  than  those  charged  in  any  other  stock-yards  in 
the  country,  and  finding  37  is  — 

"  The  other  stock-yards  heretofore  enumerated  are  operated  gen- 
erally in  the  same  manner  as  those  at  Kansas  City,  and  there  is  and  was 
for  a  long  time  prior  to  March  12,  1897,  active  and  growing  comf)e- 
tition  among  their  owners  to  attract  and  secure  to  each  the  shipment 
of  live-stock  from  competitive  territories.  Kansas  City  is  the  greatest 
stocker  and  feeder  market  in  the  world,  and  while  Chicago  exceeds  it 
as  a  general  market,  3'et,  because  of  the  expense  of  transportation  from 
Kansas  City  there,  and  the  loss  in  weight  b}'  shrinkage  during  such 
transportation,  the  live-stock  shipped  to  and  sold  at  Kansas  Cit}'  in 
1896  realized  for  its  owners  more  than  $1,500,000  in  excess  of  the 
amount  which  would  have  been  realized  if  forwarded  from  Kansas  City 
to  and  sold  on  the  Chicago  market." 

Now,  in  the  light  of  these  decisions  and  facts,  it  is  insisted  that  the 
same  rule  as  to  the  limit  of  judicial  interference  must  api)ly  in  cases  in 
which  a  public  service  is  distinctly  intended  and  rendered  and  in  those 
in  wliich,  without  any  intent  of  public  service,  the  owners  have  placed 
their  property  in  such  a  position  that  the  public  has  an  interest  in  its 
use.  Obviously  there  is  a  difference  in  the  conditions  of  these  cases. 
In  the  one  the  owner  has  intentionally  devoted  his  property  to  tlie  dis- 
charge of  a  public  service.  In  the  other  he  has  placed  his  property  in 
sucli  a  position  that,  willingly  or  unwillingly,  the  public  has  acquired 
an  interest  in  its  use.  In  the  one  he  deliberatelv  undertakes  to  do  that 
which  is  a  proper  work  for  the  State.  In  the  other,  in  pursuit  of  merely 
private  gain,  he  has  placed  his  property  in  such  a  position  that  the 


COTTING   V.    GODDARD.  319 

public  has  become  interested  in  its  use.  In  tlie  one  it  ma}'  be  said  that 
he  voluntarily  accepts  all  the  conditions  of  public  service  which  attach 
to  like  service  performed  by  the  State  itself;  in  tlie  other,  that  he  sub- 
mits to  onlv  those  necessar}-  interferences  and  regulations  which  the 
public  interests  require.  In  the  one  he  expresses  his  willingness  to  do 
the  work  of  the  State,  aware  that  the  State  in  the  discliarge  of  its  pub- 
lic duties  is  not  guided  solely  by  a  question  of  proht.  It  may  rightfully 
determine  that  the  particular  service  is  of  such  importance  to  the  public 
that  it  may  be  conducted  at  a  pecuniary  loss,  liaving  in  view  a  larger 
general  interest.  At  any  rate,  it  does  not  perform  its  services  with 
the  single  idea  of  profit.  Its  thouglit  is  the  general  public  welfare. 
If  in  such  a  case  an  individual  is  willing  to  undertake  the  work  of  the 
State,  ma}'  it  not  be  urged  that  he  in  a  measure  subjects  himself  to  the 
same  rules  of  action,  and  that  if  the  body  which  expresses  the  judgment 
of  the  State  believes  that  the  particular  services  should  be  rendered 
without  profit  he  is  not  at  libertj'  to  complain  ?  Wliile  we  have  said 
again  and  again  that  one  volunteering  to  do  such  services  cannot  be 
compelled  to  expose  his  property  to  confiscation,  that  he  cannot  be  com- 
pelled to  submit  its  use  to  such  rates  as  do  not  pay  the  expenses  of  the 
work,  and  therefore  create  a  constantly  increasing  debt  which  ultimately 
works  its  appropriation,  still  is  there  not  force  in  the  suggestion  that  as 
the  State  may  do  the  work  without  profit,  if  he  voluntai'ily  undertakes 
to  act  for  the  State  he  must  submit  to  a  like  determination  as  to  the 
paramount  interests  of  the  public  ? 

Again,  wherever  a  purely  public  use  is  contemplated,  the  State  may 
and  generally  does  bestow  upon  the  party  intending  such  use  some  of 
its  governmental  powers.  It  grants  the  right  of  eminent  domain,  by 
which  property'  can  be  taken,  and  taken,  not  at  the  price  fixed  b}-  the 
owner,  but  at  the  market  value.  It  thus  enables  him  to  exercise 
the  powers  of  the  State,  and,  exercising  those  powers  and  doing 
llic  work  of  the  State,  is  it  wholly  unfair  to  rule  that  he  must  submit 
t(j  tlie  same  conditions  whicii  the  State  ma}'  place  upon  its  own  exercise 
of  tlie  same  powers  and  the  doing  of  the  same  work  ?  It  is  unneces- 
sary in  this  case  to  determine  this  question.  We  simply  notice  the 
arguments  which  are  claimed  to  justify  a  difference  in  the  rule  as  to 
property  devoted  to  public  uses  from  that  in  respect  to  property  used 
solely  for  purposes  of  private  gain,  and  which  only  by  virtue  of  the 
conditions  of  its  use  becomes  such  as  the  public  has  an  interest  in. 

In  reference  to  this  latter  class  of  cases,  which  is  alone  the  subject 
of  present  inquiry,  it  must  be  noticed  that  the  individual  is  not  doing 
the  work  of  the  State.  He  is  not  using  his  property  in  the  discharge 
of  a  purely  public  service.  He  acquires  from  the  State  none  of  its 
governmental  powers.  His  business  in  all  matters  of  purchase  and  sale 
is  subject  to  the  ordinary  conditions  of  the  market  and  the  freedom  of 
contract.  He  can  force  no  one  to  sell  to  him,  he  cannot  prescribe  the 
price  which  he  shall  pay.  He  must  deal  in  the  market  as  others  deal, 
buying  only  when  he  can  buy  and  at  the  price  at  which  the  owner  is 


320  COTTING   V.    GODDARD. 

willing  to  sell,  and  selling  onl}-  when  he  can  find  a  purchaser  and  at 
the  price  which  the  latter  is  willing  to  pay.  If  under  such  circum- 
stances he  is  bound  by  all  the  conditions  of  ordinary  mercantile  transac- 
tions he  may  justly  claim  some  of  the  privileges  which  attach  to  those 
engaged  in  such  transactions.  And  while  b}-  the  decisions  heretofore 
referred  to  he  cannot  claim  immunity  from  all  State  regulation  he  may 
rightfully  say  that  such  regulation  shall  not  operate  to  deprive  him  of 
the  ordinary  privileges  of  others  engaged  in  mercantile  business. 

Pursuing  this  thought,  we  add  that  the  State's  regulation  of  his 
charges  is  not  to  be  measured  by  the  aggregate  of  his  profits,  determined 
by  the  volume  of  business,  but  bj'  the  question  whether  any  particular 
charge  to  an  individual  dealing  with  him  is,  considering  the  service 
rendered,  an  unreasonable  exaction.  In  other  words,  if  he  has  a 
thousand  transactions  a  day,  and  his  charges  iu  each  are  but  a  reason- 
able compensation  for  the  benefit  received  by  the  party  dealing  with 
him,  such  charges  do  not  become  unreasonable  because  by  reason  of 
the  multitude  the  aggregate  of  his  profits  is  large.  The  question  is  not 
how  much  he  makes  out  of  his  volume  of  business,  but  whether  in  each 
particular  transaction  the  charge  is  an  unreasonable  exaction  for  the 
services  rendered.  He  has  a  right  to  do  business.  He  has  a  right  to 
charge  for  each  separate  service  that  which  is  reasonable  compensation 
therefor,  and  the  Legislature  may  not  den}'  him  such  reasonable  com- 
pensation, and  may  not  interfere  simplj'  because  out  of  the  multitude 
of  his  transactions  the  amount  of  his  i)rofits  is  large.  Such  was  the 
rule  of  tlie  common  law,  even  in  respect  to  those  engaged  in  a  quasi- 
public  service,  independent  of  legislative  action.  In  any  action  to  re- 
cover for  an  excessive  charge,  prior  to  all  legislative  action,  who  ever 
knew  of  an  inquir}-  as  to  the  amount  of  the  total  profits  of  the  party 
making  the  charge?  Was  not  the  inquir}' always  limited  to  the  par- 
ticular charge,  and  whether  that  charge  was  an  unreasonable  exaction 
for  the  services  rendered? 

Again,  the  findings  show  that  the  gross  receipts  for  the  year  1896 
were  $1,012,271.22  ;  that  the  total  number  of  stock  received  during  the 
same  time  was  5,471,246.  In  other  words,  the  charge  per  cajnta  was 
eighteen  cents  and  five  mills.  So  that  one  shipping  to  the  stock-yards 
one  hundred  head  of  stock  was  charged  $18. 50  for  the  privileges  of  the 
yard,  the  attendance  of  the  employees,  and  the  feed  furnished.  "While 
from  these  figures  alone  we  might  not  say  that  the  charges  were  reason- 
able or  unreasonable,  we  cannot  but  be  impressed  with  the  fact  that 
the  smallness  of  the  charge  suggests  no  extortion.  Further,  as  here- 
tofore noticed,  the  findings  show  tliat  the  establishment  of  these  yards 
has  operated  to  secni-e  to  the  shippers  during  a  single  3-ear  $1,500,000 
more  than  they  would  have  realized  in  case  of  their  non-existence  and 
a  consequent  shipment  to  Chicago,  the  other  great  stock  market  of  the 
country. 

"  Another  reason  why  the  classification  should  be  based  upon  the  vol- 
ume of  business  done  is  that  rates  which  are  reasonable  and  proper  and 


COTTING   V.    GODDARD.  321 

furnish  a  sufficient  return  upon  the  capital  invested  can  very  proper]}* 
be  made  lower  and  different  in  a  plant  where  the  volume  of  business 
is  large,  while  in  a  smaller  plant  doing  a  smaller  volume  of  business 
higher  rates  may  be  necessar}-  in  order  to  afford  adequate  returns." 

If  the  average  daily  receipts  of  a  stock-yard  are  more  than  one  hun- 
dred head  of  cattle,  or  more  than  three  hundred  head  of  hogs,  or  more 
than  three  hundred  head  of  sheep,  it  comes  within  the  purview  of  this 
statute.  If  less  than  the  amount  it  is  free  from  legislative  restriction. 
No  matter  what  yards  it  may  touch  to-da^-  or  in  the  near  or  far  future, 
the  express  declaration  of  the  statute  is  that  stock-yards  doing  a  busi- 
ness in  excess  of  a  certain  amount  of  stock  shall  be  subjected  to  this 
regulation,  and  that  all  others  doing  less  business  shall  be  free  from  its 
provisions.  Clearly  the  classification  is  based  solely  on  the  amount  of 
business  done,  and  without  an}'  reference  to  the  character  or  value  of 
the  services  rendered.  Kindred  legislation  would  be  found  in  a  stat- 
ute like  this  :  requiring  a  railroad  company  hauling  ten  tons  or  over  of 
freight  a  day  to  charge  only  a  certain  sum  per  ton,  leaving  to  other 
railroad  companies  hauling  a  less  amount  of  freight  the  right  to  make 
any  reasonable  charge  ;  or,  one  requiring  a  railroad  company  hauling 
one  hundred  or  more  passengers  a  day  to  charge  only  a  specified 
amount  per  mile  for  each,  leaving  those  hauling  ninety-nine  or  less  to 
make  any  charge  which  would  be  reasonable  for  the  service  ;  or  if  we 
may  indulge  in  the  supposition  that  the  Legislature  has  a  right  to  inter- 
fere with  the  freedom  of  private  contracts,  one  which  would  forbid  a 
dealer  in  shoes  and  selling  more  than  ten  pairs  a  da}'  from  charging 
more  than  a  certain  price  per  pair,  leaving  the  others  selling  a  less 
number  to  charge  that  which  they  deemed  reasonable  ;  or  forbidding 
farmers  selling  more  than  ten  bushels  of  wheat  to  charge  above  a  spec- 
ified sum  per  bushel,  leaving  to  those  selling  a  less  amount  the  privi- 
lege of  charging  and  collecting  whatever  they  and  the  buyers  may  see 
fit  to  agree  upon.  In  short,  we  come  back  to  the  thought  that  the 
classification  is  one  not  based  upon  the  character  or  value  of  the  ser- 
vices rendered,  but  simply  on  the  amount  of  the  business  which  the 
party  does,  and  upon  the  theory  that  although  he  makes  a  charge  which 
everybody  else  in  the  same  business  makes,  and  which  is  perfectly  rea- 
sonable so  far  as  the  value  of  the  services  rendered  to  the  individuals 
seeking  them  is  concerned,  yet  if  by  the  aggregation  of  business  he  is 
enabled  to  make  large  profits  his  charges  may  be  cut  down. 

Heversed. 


21 


322  SOUTHERN    PACIFIC    CO,    V.    RAILROAD   COMxMISSIONERS. 


SOUTHERN   PACIFIC   CO.    v.    BOARD   OF    RAILROAD 
COMMISSIONERS. 

Circuit  Court  of  the  United  States,  1896. 

[78  Fed.  Rep.  236.1] 

The  Southern  Pacific  Company  is  a  corporation  organized  under  a 
special  act  of  the  legislature  of  Kentucky-,  and  operating,  under  leases, 
a  number  of  railroads,  in  California  and  other  States  and  Territories, 
constituting  its  Pacific  System. 

On  September  12  and  13,  1895,  the  board  of  railroad  commissioners 
of  California,  acting  under  the  powers  conferred  on  it  b}-  section  22, 
art.  12,  of  the  constitution  of  California,  and  b}-  the  act  of  the  legis- 
lature of  April  15,  1880,  passed  two  resolutions,  the  first  of  which, 
adopted  unanimously,  and  known  as  the  "  Grain  Resolution,"  was  as 
follows  : 

"Resolved,  that  the  rates  at  present  existing  for  the  transportation 
of  grain  in  California,  by  the  Southern  Pacific  Company,  and  its  leased 
lines,  as  established  b}-  grain  tariff  No.  2  and  all  subsequent  amend- 
ments thereto,  be,  and  the  same  are  hereby,  reduced  8  per  cent ;  and 
the  secretary  of  this  board  is  hereby  directed  forthwith  to  prepare  for 
publication  b}-  this  board  a  schedule  of  rates  in  accordance  herewith; 
and,  when  so  prepared,  the  same  shall  be  published  at  once,  and  take 
efl'ect  as  soon  thereafter  as  allowed  by  law,  and  that  on  the  adoption 
of  the  revised  general  freight  tariff  of  said  compau}-,  herein  provided 
for,  any  further  per  cent  deduction  due  said  grain  tariff,  as  provided 
herein,  shall  be  given." 

The  second,  adopted  by  the  votes  of  Commissioners  La  Rue  and 
Stanton,  against  the  vote  of  Commissioner  Clark,  and  known  as  the 
"  25  Per  Cent  Resolution,"  was  as  follows  : 

"  Resolved,  that  the  present  rates  of  charges  for  the  transportation 
of  freights  in  California  by  the  Southern  Pacific  Compan}'  and  its 
leased  lines  are  unjust  to  the  ship[)crs  of  the  State.  Therefore  be  it 
resolved,  that  the  present  rate  of  charges  for  the  transportation  of 
freights  in  California  bj'  the  Southern  Pacific  Compan}-  and  its  leased 
liens  be  subjected  to  such  an  average  reduction  as,  including  all  reduc- 
tions made  therein  since  December  1,  1894,  shall  equal  an  average 
reduction  of  25  per  cent  upon  said  rates,  as  in  existence  on  said 
December  1,  1894.  Resolved,  that  this  board  proceed  at  once  to  adopt 
a  revised  schedule  of  rates  in  accordance  herewith,  in  order  that  the 
same  may  be  in  force  on  or  before  Januar}'  1,  1896.  And  be  it  further 
resolved,  that,  if  the  necessities  of  the  case  so  require,  this  board  will 
at  once  proceed  to  the  ascertainment  of  the  proportion  of  the  reduction 
due  any   commodity  which,   ])y  reason  of  its  nature,   requires  to  be 

^  This  case  is  abridged.  —  Ed. 


SOUTHERN    PACIFIC   CO.    V.    RAILROAD    COMxMISSIONEES.  323 

moved  between  now  and  the  time  herein  fixed  of  the  taking  effect  of 
said  general  reduction." 

On  October  14,  1895,  the  Southern  Pacific  Compan}-  filed  its  bill 
against  the  board  of  railroad  commissioners,  seeking  to  enjoin  the  en- 
forcement of  these  resolutions,  and  obtained  a  temporarj-  restraining 
order,  with  an  order  to  show  cause  wh\'  it  should  not  be  continued. 
The  United  States  also  intervened  in  sup[)ort  of  the  prayer  for  an 
injunction ;  and  affidavits  and  other  proofs  were  submitted  by  all 
parties,  with  full  arguments  upon  the  question  of  the  continuance  of 
the  injunction. 

McKenna,  Circuit  Judge.  .  .  .  The  attorne}-  general  says  that  he 
can  demonstrate,  beyond  the  possibility  of  a  plausible  explanation, 
that  complainant  has  failed  to  make  such  a  showing  as  would  entitle  it 
to  the  relief  prayed  for,  even  if  the  8  per  cent  and  25  per  cent 
reductions  could,  under  any  circumstances,  be  considered  jointly.  On 
the  otlier  hand,  Mr.  Herrin  says  that  complainant  is  not  asking  for  a 
single  dollar  of  dividend,  because  existing  rates  and  business  are  not 
sufficient  to  earn  dividends.  It  only  seeks  revenue  enough  to  pay 
interests  on  bonds,  to  pa}'  operating  expenses,  and  to  pay  taxes. 
Present  rates,  under  the  experience  of  1894,  were  insufficient  for  such 
payment.  The  elements  of  the  controvers}'  will  be  stated  as  we 
proceed.  It  may,  however,  be  premised  here  that  Mr.  Justice  Brewer 
said  in  the  Dey  case:  "Compensation  implies  three  things,  —  paj'- 
ment  of  the  cost  of  service,  interest  on  bonds,  and  then  some  divi- 
dend ;  "  "  adequate  dividend,"  subsequent  cases  say.  These,  then,  are 
the  factors  of  compensation  to  be  applied. 

Complainant's  bill,  after  a  somewhat  detailed  statement  of  the 
amounts  payable  b}*  complainant  under  the  leases  to  it,  gives  a  sum- 
mary of  the  receipts  and  expenditures,  which  shows  a  deficiency  on  the 
Pacific  System  for  the  year  of  1894  of  $276,262.70;  fov  1895, 
Si  ,476,176.39.  In  the  amendment  to  the  bill  there  is  an  exliibit  of 
the  receipts  and  expenditures  of  tlie  California  roads  of  the  sj'stem, 
showing  a  surplus  for  1894  of  $434,497.05  ;  for  1895  (ending  June 
30),  a  deficit  of  $863,691.29.  The  attorney  general  claims  that  this 
showing  is  incorrect,  for  three  reasons:  (1)  Because  there  is  included 
a  deficit  of  the  Oregon  &  California  road,  in  the  sum  of  $54I,o55.,71  ; 
(2)  because  there  are  included  in  expenditures  on  the  various  roads, 
for  improvements  and  betterments,  the  sum  of  $654,826.81  ;  (3) 
because  there  is  included  in  expenditures,  as  operating  expenses,  the 
rent  paid  to  the  California  Pacific  road,  in  the  sum  of  $600,000.  If 
the  last  (third)  be  good,  it  is  conceded  that  the  deficit  on  the  Pacific 
System,  including  the  other  objected  items,  will  amount  to  $24,131.20. 
If  not  good,  the  deficit  will  amount  to  $54,905.65.  For  the  time 
being,  I  will  assume  tliis  objection  to  be  good,  and  will  consider  the 
other  objections. 

Is  tlie  deficit  of  the  Oregon  &  California  road  a  proper  expenditure 
of  complainant,  which  resulted  from  the  insufficiency  of  the  income  to 


324  SOUTHERN   PACIFIC   CO.    V.    RAILROAD   COMMISSIONERS. 

pay  the  interest  on  the  bonded  debt  ?  This,  of  course,  depends  upon 
the  terms  of  the  lease  from  the  Oregon  &  California  Companw  It 
provides  that  the  Southern  Pacific  Company  shall  pay  to  the  Oregon 
&  California  Company,  on  account  of  the  road,  from  the  income 
received  from  it,  as  follows:  The  cost  of  operating  such  road  and 
incidental  expenses  connected  tliercwith,  and  "  shall  appl}-  the  residue 
of  the  amount  of  net  income  and  earnings  of  said  railroads  to  such 
extent  as  shall  be  required  for  the  purpose,  to  the  payment  of  the 
interest,  .  .  .  upon  the  now  existing  bonded  indebtedness."  The  lease 
also  provided  that  "on  the  1st  of  Ma}'  of  each  year  the  Southern 
Pacific  Company  shall  pay  to  its  lessor  such  balance,  if  any,  of  the  net 
income  for  the  year  ended  the  1st  of  December  preceding,  as  shall 
remain  in  its  hands  after  all  the  payments  for  interest  .  .  .  agreed  to 
be  made  or  paid."  It  is,  however,  further  provided  that,  if  the  net 
income  be  insufficient  to  pay  in  full  such  current  interest  for  the  year, 
it  shall  be  optional  with  the  Southern  Pacific  Company  to  advance  or  pay 
for  account  of  the  Oregon  &  California  Company  such  deficiency.  If, 
however,  it  do  so,  it  shall  be  entitled  to  interest  thereon,  at  6  per  cent 
per  annum,  until  reimbursed,  and  shall  be  entitled  to  pay  itself  out  of 
subsequent  earnings  or  income  of  the  demised  premises,  and  have  a 
lien  thereon,  and  on  such  income. 

It  is  objected  that  the  payment  of  the  deficit  was  optional,  and 
again,  ]:>ecause  the  amount  paid  is  secured  upon  future  revenues  and  on 
the  demised  premises.  In  other  words,  it  was  not  a  "  payment,"  in 
any  proper  sense,  by  the  Southern  Pacific  Company  for  which  it  could 
charge.  Interest  on  bonded  debt  is  held  by  all  authorities  to  be  a 
proper  charge  upon  income,  and  hence,  if  the  Oregon  &  California 
Company  had  operated  its  road,  such  interest  could  be  claimed  b}-  it, 
—  deficiency  of  income  to  pay  such  interest  would  be  a  loss  to  the 
companv.  But  that  is  not  the  test.  We  have  already  seen  (and  im- 
portant consequences  follow  from  it)  that  the  board  of  railroad  com- 
missioners dealt  with  the  Pacific  System — dealt  with  the  Southern 
Pacific  Company,  as  operating  that  system  —  not  any  individual  road, 
but  all  the  roads ;  and  hence  the  regulation  of  the  board  must  be 
tested  by  the  revenues  of  all  the  roads,  not  by  the  revenue  of  one. 
It  is  not  what  the  Oregon  &  California  Company  might  show,  or 
what  the  Southern  Pacific  Company  might  show,  for  the  operation  of 
that  road  alone,  but  what  it  may  show  as  to  the  S3-stem.  This  being 
so,  the  conclusion  is  obvious.  Was  the  payment  of  the  interest  a 
loss  to  the  Southern  Pacific  Company  ?  Clearly  not.  It  is  secured  to 
it,  and  is  to  be  reimbursed  to  it,  and  is  charged  in  the  report  as  a 
"  balance  deficit  payable  by  Oregon  &  California  Railroad  Company." 
Clearh',  again,  if  it  had  not  been  paid,  it  could  not  be  claimed  as  a 
loss.  If  paid,  and  to  be  reimbursed  and  secured,  it  cannot  be 
claimed  as  a  loss,  if  the  debtor  or  the  security  be  good.  I  cannot 
assume  now  that  ti\e  debtor  or  the  securit}'  will  not  be  good.  It  may 
be,  of  course,  that  it  will  not  be  good,  but  I  can  only  deal  with  present 


SOUTHERN    PACIFIC    CO.    V.    RAILROAD    COMMISSIONERS.  325 

conditions,  or,  at  any  rate,  with  tliose  likely  to  occur  within  a  reason- 
able period  of  tinae.  That,  under  the  lease,  the  payment  of  the  deficit 
is  not  a  charge  on  the  Southern  Pacific  Company,  is  not  onl}-  evident 
from  its  terms,  but  evident  from  the  allegations  of  the  bill. 

The  second  ground  of  objection,  that  is,  that  to  improvements  and 
betterments,  there  will  have  to  be  considered  —  First,  the  abstract 
legality  of  such  a  charge  ;  and,  second,  the  competency  of  it  under  the 
leases.  The  abstract  legality  of  such  charge  is  established  bj'  the 
Eeagan  Case.  The  same  contention  was  made  there,  and  a  deduction 
of  the  sum  of  $302,085.77  was  claimed  to  have  been  charged  to 
operating  expenses,  whereas  it  was  expended  for  "  Cost  of  road, 
equipment,  and  permanent  improvements."  Mr.  Justice  Brewer, 
commenting  on  the  claim,  said  : 

"  Again,  the  sum  of  8302,085.77  appears  in  that  table,  under  the 
description  'Cost  of  road,  equipment,  and  permanent  improvements, 
admitted  to  have  been  included  in  operating  expenses,'  and  is  added  to 
the  income  as  though  it  had  been  improperly  included  in  operating 
expenses.  But,  before  this  change  can  be  held  to  be  proper,  it  is  well 
to  see  what  further  light  is  thrown  on  the  matter  by  other  portions  of 
the  report.  That  states  that  there  were  no  extensions  of  the  road 
during  that  year,  so  that  all  of  this  sum  was  expended  upon  the  road 
as  it  was.  Among  the  items  going  to  make  up  this  sura  of  6302,085.77 
is  one  of  $113,212.09  for  rails,  and  it  a[)pears  from  the  same  report 
that  there  was  not  a  dollar  expended  for  rails  except  as  incUided 
within  this  amount.  Now,  it  goes  without  saying  that,  in  the  operation 
of  every  road,  there  is  a  constant  wearing  out  of  the  rails,  and  a  con- 
stant necessity  for  replacing  old  with  new.  The  purchase  of  these 
rails  may  be  called  "  permanent  improvements,"  or  by  any  other  name  ; 
but  they  are  what  is  necessary  for  keeping  the  road  in  serviceable  con- 
dition. Indeed,  in  another  part  of  the  report,  under  the  head  of 
'  Renewals  of  rails  and  ties,'  is  stated  the  number  of  tons  of  '  New 
rails  laid '  on  the  main  line.  Other  items  therein  are  for  fencing,  grad- 
ing, bridging,  and  culvert  masonr}',  bridges  and  trestles,  buildings, 
furniture,  fixtures,  &c.  It  being  shown  affirmatively  that  there  were 
no  extensions,  it  is  obvious  that  these  expenditures  were  those  neces- 
sary for  a  proper  carrying  on  of  the  business  required  of  the  company.*' 

Substantially  to  the  same  effect  is  Union  Pac.  Ry.  Co.  v.  U.  S.,  99 
U.  S.  402.  In  the  latter  case  the  court  was  called  upon  to  inter[)ret 
that  clause  of  the  act  of  1862  in  aid  of  the  construction  of  the  Union 
Pacific  Railroad  which  provided  that  "after  said  road  is  completed, 
and  until  said  bond  and  interest  are  paid,  at  least  5  per  cent  of  the 
net  earnings  of  said  roads  shall  also  be  applied  to  the  paynient  there- 
of." It  may  be  said  that  there  were  several  elements  in  that  case 
which  are  not  in  the  case  at  bar,  but,  nevertheless,  the  remarks  ]\lr. 
Justice  Bradley  makes  are  substantially  applicable.  Speaking  of  when 
a  railroad  is  completed,  he  said  : 

"In  one  sense,  a  railroad  is  never  completed.     There  is  never,  or 


326  SOUTHEKN    PACIFIC    CO.    V.   RAILROAD    COMMISSIONERS. 

liardl}'  ever,  a  time  when  sometliiug  more  cannot  be  done,  and  is  not 
done,  to  render  the  most  perfect  road  more  complete  than  it  was  before. 
This  fact  is  well  exemplified  by  the  history  of  the  early  railroads  of 
the  country".  At  first,  many  of  them  were  constructed  with  a  flat  rail 
or  iron  bar,  laid  on  wooden  stringpieces,  resulting  in  what  was  known 
in  former  times  as  'snake  heads';  the  bars  becoming  loose,  and 
curving  up  in  such  a  manner  as  to  be  caught  by  the  cars,  and  forced 
through  the  floors  amongst  the  passengers.  Then  came  the  T  rail,  and, 
finall}',  the  H  rail,  which  itself  passed  through  many  successive  im- 
provements. Finally,  steel  rails,  in  the  place  of  iron  rails,  have  been 
adopted  as  the  most  perfect,  durable,  safe,  and  economical  rails  on 
extensive  lines  of  road.  Bridges  were  first  made  of  wood,  then  of 
stone,  then  of  stone  and  iron.  Grades  originally  crossed,  and,  in  most 
cases,  do  still  cross,  highways  and  other  roads  on  the  same  level.  The 
most  improved  plan  is  to  have  them,  b}'  means  of  bridges,  pass  over 
or  under  intersecting  roads.  A  single  track  is  all  that  is  deemed 
necessary  to  begin  with  ;  but  now  no  railroad  of  any  pretensions  is 
considered  perfect  until  it  has,  at  least,  a  double  track.  Depots  and 
station  houses  are,  at  first,  mere  sheds,  which  are  deemed  sufticient  to 
answer  tlie  purpose  of  business.  Tliese  are  succeeded,  as  the  means 
of  the  company  admit,  by  commodious  station  and  freight  houses,  of 
permanent  and  ornamental  structure.  And  so  the  process  of  improve- 
ment goes  on  ;  so  that  it  is  often  a  nice  question  to  determine  what  is 
meant  by  a  complete,  first-class  railroad." 

And,  declaring  what  are  proper  expenditures,  he  further  said  : 
"  Having  considered  the  question  of  receipts  or  earnings,  the  next 
thing  in  order  is  the  expenditures  which  are  properly  chargeable 
against  the  gross  earnings  in  order  to  arrive  at  the  '  net  earnings,'  as 
this  expression  is  to  be  understood  within  the  meaning  of  the  act.  As 
a  general  proposition,  net  earnings  are  the  excess  of  the  gross  earnings 
over  the  expenditures  defrayed  in  producing  them,  aside  from  and 
exclusive  of  the  expenditure  of  capital  laid  out  in  constructing  and 
equipping  the  works  themselves.  It  ma}'  often  be  difficult  to  draw  a 
precise  line  between  expenditures  for  construction  and  the  ordinary 
expenses  incident  to  operating  and  maintaining  the  road  and  works  of 
a  railroad  company.  Theoretically,  the  expenses  chargeable  to  earn- 
ings include  the  general  expenses  of  keeping  up  the  organization  of 
the  company,  and  all  expenses  incurred  in  operating  the  works  and 
keeping  them  in  good  condition  and  repair;  while  expenses  chargeal)le 
to  ca[)ital  include  those  which  are  incurred  in  the  original  construction 
of  the  works,  and  in  the  subsequent  enlargement  and  improvement 
thereof.  With  regard  to  the  last-mentioned  class  of  ex|)enditures, 
however,  namely,  those  which  are  incurred  in  enlarging  and  improving 
the  works,  a  difference  of  practice  i)ivvails  amongst  railroad  com|)anies. 
Some  charge  to  construction  account  every  item  of  expense,  and  every 
part  and  portion  of  ever}-  item,  which  goes  to  make  the  road,  or  any 
of  its  appurtenances  or  equipments,   better  than  the}-  were  before ; 


SOUTHERN    PACIFIC    CO,    V.    RAILROAD    COMMISSIONERS.  327 

whilst  others  charge  to  ordinary  expense  account,  and  against  earnings, 
whatever  is  taken  for  these  purposes  from  the  earnings,  and  is  not 
raised  upon  bonds  or  issues  of  stock.  Tlie  latter  method  is  deemed 
the  most  conservative  and  beneficial  for  the  company,  and  operates  as 
a  restraint  against  injudicious  dividends  and  the  accuumlation  of  a 
heavy  indebtedness.  The  temptation  is  to  make  expenses  appear  as 
small  as  possible,  so  as  to  have  a  large  apparent  surplus  to  divide. 
Eut  it  is  not  regarded  as  the  wisest  and  most  prudent  method.  The 
question  is  one  of  policy,  which  is  usually  left  to  the  discretion  of  the 
directors.  There  is  but  little  danger  that  any  board  will  cause  a  ver}' 
large  or  undue  portion  of  their  earnings  to  be  absorbed  in  permanent 
improvements.  The  practice  will  only  extend  to  those  which  may  lie 
required  from  time  to  time  by  the  gradual  increase  of  the  company's 
traflflc,  the  despatch  of  business,  the  public  accommodation,  and  the 
general  permanenc}'  and  completeness  of  the  works.  When  an}-  im- 
portant improvement  is  needed,  such  as  an  additional  track,  or  an}' 
other  matter  which  involves  a  large  outlay  of  money,  the  owners  of  the 
road  will  liardly  forego  the  entire  suspension  of  dividends  in  order  to 
raise  the  requisite  funds  for  those  purposes,  but  will  rather  take  the 
ordinary  course  of  issuing  bonds  or  additional  stock.  But  for  making 
all  ordiuary  improvements,  as  well  as  repairs,  it  is  better  for  the  stock- 
holders, and  all  those  who  are  interested  in  the  prosperity  of  the  enter- 
prise, that  a  portion  of  the  earnings  should  be  employed.  .  .  .  We  are 
disposed  to  agree,  therefore,  with  the  judge  who  delivered  the  con- 
curring opinion  in  the  court  below,  that  the  twent3'-seventh  item  of 
expenditure,  as  stated  in  the  table  of  expenses  in  the  eighteenth  find- 
ing, entitled  '  Expenditures  for  station  buildings,  shops,'  &c.,  is  a 
charge  that  may  properly  be  made  against  earnings  ;  since,  as  the  fact 
is,  such  expenditures  were  actually  paid  therefrom,  and  were  not  carried 
to  capital  account." 

The  same  idea  is  variously  illustrated  in  the  following  cases  :  U.  S. 
V.  Kansas  Pac.  R.  Co.,  99  U.  S.  455  ;  St.  John  v.  Railway  Co.,  22 
Wall.  136;  Railroad  Co.  v.  Nickals,  119  U.  S.  296,  7  Sup.  Ct.  209; 
Warren  v.  King,  108  U.  S.  389,  2  Sup.  Ct.  789  ;  Mobile  &  O.  R.  Co. 
V.  State  of  Tennessee,  153  U.  S.  495,  14  Sup.  Ct.  968  ;  Barnard  v. 
Railroad  Co.,  8  Allen,  512  ;  Minot  v.  Paine,  99  Mass.  106,  107  ;  Rail- 
way Co.  V.  Elkins,  37  N.  J.  Eq.  273  ;  Dent  v.  London  Tramways  Co., 
16  Ch.  Div.  344. 

The  order  of  the  court,  therefore,  is  that  that  part  of  the  order 
staying  the  execution  of  the  resolution  of  the  board  of  railroad  commis- 
sioners, reducing  rates  on  grain  8  per  cent,  be  continued  until  the 
further  order  of  the  court ;  that  the  balance  of  the  restraining  order 
be  dissolved. 


328      GLOUCESTER  WATER  SUPPLY  CO.  V.   GLOUCESTER. 


GLOUCESTER  WATER  SUPPLY  CO.  v.   GLOUCESTER. 

Supreme  Court  of  Massachusetts,  1901. 

[179  Mass.  365.1] 

Petition  to  determine  the  value  of  the  petitioner's  water  plant  pur- 
chased by  the  respondent  on  September  24,  1895,  under  St.  1895,  c. 
451,  §  16,  filed  October  29,  1895. 

Commissioners  were  appointed  under  the  provisions  of  the  act,  who 
reported  that  the  value  of  the  plant,  exclusive  of  an}'  allowance  for  the 
franchise  and  rights  other  than  the  water  rights  of  the  company,  and 
excluding  all  evidence  as  to  the  past  earning  capacity  of  the  company, 
was  $600,500,  and  that  the  petitioner  should  recover  that  amount  with 
interest  from  September  24,  1895,  less  the  sum  of  $3,955.40,  which  it 
was  agreed  should  be  deducted  therefrom. 

LoRiNG,  J.  ...  It  will  be  convenient  to  consider  the  respondent's 
contention  that  the  commissioners  had  no  right  to  award  the  $75,000 
allowed  by  them  in  addition  to  the  cost  of  duplication  of  the  water 
company's  plant,  less  depreciation,  in  connection  with  the  water  com- 
panv's  contention  that  evidence  of  past  earnings  of  the  water  company 
should  have  been  admitted  in  evidence. 

The  act  under  v.-hich  the  award  was  made  (St.  1895,  c.  451)  is  an 
act  enabling  the  city  of  Gloucester  to  "  supplj-  itself  and  its  inhabitants 
with  water."  B}'  §  16  of  that  act,  that  right  is  made  conditional  on  its, 
tlie  city's,  purchasing  the  property  of  the  water  company  in  case  the 
water  company  elects  to  sell  its  property  to  the  cit}'.  In  case  the  cit}' 
agrees  to  buy  the  water  company's  property,  under  an  offer  of  the  water 
compan}'  made  under  the  provisions  of  that  section,  it  is  provided  that 
"said  city  shall  pay  to  said  company  the  fair  value  thereof.  .  .  .  Such 
value  shall  be  estimated  without  enhancement  on  account  of  future 
earning  capacity,  or  future  good  will,  or  on  account  of  the  franchise 
of  said  company-." 

In  determining  the  true  construction  of  these  provisions  of  §  16,  it 
is  important  to  bear  in  mind  the  purpose,  which  the  Legislature  had, 
in  making  the  right  of  the  city  to  suppl}'  itself  with  water  conditional 
on  its  buying  the  company's  property,  in  case  the  com[)any  elected  to 
sell  it  to  the  city,  and  in  providing  that  in  ascertaining  the  "fair 
value"  of  that  property,  it  should  not  be  enhanced  "on  account  of 
future  earning  capacity,  or  future  good  will,  or  on  account  of  the  fran- 
chise of  said  company." 

On  the  one  hand,  it  is  plain  that  a  private  water  company  organized 
for  net  profits  cannot  hope  to  compete  with  a  city,  which  can  rely  upon 
taxes  to  supply  a  deficit  in  operating  ex[)enses.  For  that  reason,  it  is 
also  plain  that  if  the  Legislature  had  not  required  the  city  to  buy  the 

^  This  case  is  abridged.  —  Ed. 


GLOUCESTER    WATER    SUPPLY    CO.   V.    GLOUCESTER.  329 

water  company's  propert}',  the  company's  propert}'  would  have  been 
practically,  though  not  legalh',  confiscated.  No  doubt,  thcrofore,  can 
arise  as  to  the  reasons  fur  the  insertion  of  the  clause  in  §  16  providing 
that  the  value  shall  not  be  enhanced  '•  on  account  of  the  franchise  of 
said  company."  The  franchise  of  the  Gloucester  Water  Supply  Com- 
pany was  not  an  exclusive  franchise.  The  grant  of  a  similar  franchise 
to  the  city  of  Gloucester  to  su[)ply  itself  and  its  inhabitants  with  water 
was  not  a  violation  of  the  franchise  rights  of  the  Gloucester  AVater 
Supply  Company;  and  finally,  the  sale  to  the  cit}-  was  not  obligator}' 
on  the  water  company.  The  corapan}'  was  given  the  option  of  selling 
its  property  to  the  city  or  of  going  on  in  competition  with  the  cit}', 
under  the  act  in  question.  Under  these  circumstances,  it  is  plain  that 
the  value  of  the  company's  propert}',  which  the  cit\-  is  compelled  to 
bu}',  ought  not  to  be  enhanced  "on  account  of  the  franchise  of  said 
company." 

It  is  also  plain,  so  long  as  a  water  company  has  no  competitor  in 
supplying  a  town  or  city  with  water,  it  is  practically  in  the  enjoyment 
of  an  exclusive  franchise,  although  its  franchise  is  not  legall}-  an  ex- 
clusive one.  For  that  reason,  the  past  earnings  of  this  corapan}-  were 
not  evidence  of  the  "  fair  value  "  of  this  property.  The  earnings  of  a 
company  which  is  in  the  enjoyment  of  what  is  practically  an  exclusive 
franchise  are  not  a  criterion  of  the  "  fair  value"  of  the  property  apart 
from  an  exclusive  franchise.  We  are  of  opinion  that  the  evidence  of 
past  earnings  ofllered  b}-  the  water  compan}-  was  properly  excluded. 
Newl)uryport  Water  Co.  v.  Newbur3'port,  168  Mass.  541. 

It  is  argued  b}'  the  petitioner  that  the  admissibilit}'  of  such  evidence 
derives  support  from  St.  1891,  c.  370,  §  12,  which  provides  that  in 
determining  the  "  fair  market  value  "  of  a  gas  or  electric  plant  under 
similar  circumstances  "•  the  earning  capacity  of  such  plant  based  upon 
the  actual  earnings  being  derived  from  such  use  at  the  time  of  the  final 
vote  of  such  city  or  town  to  establish  a  plant"  is  to  be  included  "  as 
an  element  of  value  ; "  but  this  clause  as  to  the  earning  capacity  being 
considered  as  an  element  of  value  was  omitted  from  the  act  in 
question. 

Tiie  only  doubt  as  to  the  propriety  of  the  allowance  of  a  sum  in 
addition  to  the  cost  of  duplication,  less  depreciation,  of  the  water  com- 
pany's plant  is  whether  the  principles  on  which  the  commissioners 
proceeded  were  suflficiently  favorable  to  the  water  company. 

It  is  plain  that  the  real,  commercial,  market  value  of  the  property 
of  the  water  compan}'  is,  or  may  be,  in  fact,  greater  than  "  the  cost  of 
dui)lication,  less  depreciation,  of  the  diflTerent  features  of  the  physical 
plant."  Take,  for  example,  a  manufacturing  plant:  Suppose  a  manu- 
facturing plant  has  been  established  for  some  ten  years  and  is  doing  a 
good  business  and  is  sold  as  a  going  concern  ;  it  will  sell  for  more  on 
the  market  than  a  similar  plant  reproduced  physicallv  would  sell  for 
immediatel}'  on  its  completion,  before  it  had  acq.iired  an}'  business. 
National  Waterworks  Co.  v.  Kansas  City,  62  Fed.  Rep.  853. 


330  BRYMER   V.    BUTLER   WATER    CO. 

We  think  it  is  plain  that  there  is  nothing  in  the  provisions  of  §  16  of 
the  act  in  question,  St.  1895,  o.  451,  forbidding  tlie  commissioners 
considering  this  element  of  value  which,  as  we  have  seen,  in  fact 
exists.  The  provisions  of  the  act  are  that  the  "  fair  value  .  .  .  shall 
be  estimated  without  enhancement  on  account  of  future  earning 
capacit}-,  or  future  good  will,  or  on  account  of  the  franchise  of  said 
company."  Whether  that  would  allow  present  earning  capacity  and 
present  good  will,  apart  from  the  franchise,  to  be  taken  into  account, 
as  distinguished  from  future  earning  capacity  and  future  good  will, 
need  not  be  considered.  It  is  plain  that  the  element  of  value,  which 
comes  from  the  fact  that  the  property  is  sold  as  a  going  concern,  in 
which  case  it  has,  or  may  have,  in  fact,  a  greater  market  value  than 
the  same  property  reproduced  in  its  physical  features,  is  not  excluded 
from  consideration  by  that  provision  of  the  statute. 

It  is  also  plain  that  the  commissioners,  in  allowing  the  $75,000 
allowed  by  them  in  addition  to  the  cost  of  duplication,  less  deprecia- 
tion, of  the  plant  in  its  physical  features,  did  not  go  beyond  this. 
They  stale  that  in  their  opinion  "  the  cost  of  duplication,  less  deprecia- 
tion, of  the  different  features  of  tlie  physical  plant,  .  .  .  does  not 
represent  a  fair  valuation  of  this  plant,  wehled  together,  not  only  fit 
and  prepared  to  do  business,  but  having  brought  that  business  into  such 
a  condition  that  there  is  an  enhanced  value  created  thereby,  so  that  the 
city  in  purchasing  it,  without  considering  its  income  or  right  to  do 
business,  but  having  the  power  to  carry  it  on  on  its  own  account,  should 
l)ay  more  for  the  pro[)erty  as  such  than  as  if  this  consideration  did  not 
obtain.  This  is  a  value  that  we  have  found  to  be  seventy-five 
thousand  dollars  (875,000)  that  has  been  imported  into  the  plant, 
which  seems  to  us  as  much  a  part  of  the  property  valuation  as  any 
other  part  of  it."  Eeport  affirmed. 


BRYMER  V,   BUTLER  WATER   CO. 
Supreme   Court  of  Pennsylvania,   1897. 

[179  Pa.  St.  231.1] 

Williams,  J.  ...  A  provision  in  the  third  section  of  the  Act  of 
June  2,  1887,  relating  to  the  jurisdiction  of  the  courts  over  gas  and 
-water  companies  is  supplemental  to  the  Act  of  1874,  and  defines  some- 
what more  distinctly  tlie  duty  of  such  companies  to  furnish  the  public 
with  pure  gas  and  water,  but  it  contains  no  allusion  to  the  subject  of 
price.  The  power  of  the  court  to  interfere  between  the  seller  and  the 
buyer  of  water  is  conferred  only  by  the  provisions  already-  quoted  from 
the  Act  of  1874  ;  and  that  act  authorizes  the  court  to  entertain  the 

1  This  case  is  abridged.  —  Ed. 


BKYMEK    V.    BUTLf:R    WATER   CO.  331 

complaint  of  the  bujer,  to  investigate  the  reasonableness  of  the  price 
charged,  and  to  '■'dismiss  the  complaint,"  or  to  order  that  the  charges 
complained  of,  if  found  to  be  unreasonable  and  unjust,  "■  shall  be 
decreased."  The  water  company  prei)ures  its  schedule  of  prices  in  the 
first  instance,  and  makes  its  own  terms  with  its  customers  ;  but  if 
these  are  oppressive,  so  that  in  the  exercise  of  the  visitorial  power  of 
the  State  the  just  protection  of  the  citizen  requires  that  they  be  reduced, 
ihen  the  court  is  authorized  to  say  "  this  charge  is  oppressive.  You 
must  decrease  it.  You  are  entitled  to  charge  a  price  that  will  yield  a 
fair  compensation  to  you,  but  you  must  not  be  extortionate."  This  is 
not  an  authorit}-  to  manage  the  affairs  of  the  company,  but  to  restrain 
illegal  and  oppressive  conduct  on  its  part  in  its  dealings  with  the 
public.  It  may  be  that  the  power  to  order  that  any  particular  item  of 
charge  shall  "■  be  decreased  "  includes  the  power  to  fix  the  extent  of  the 
reduction  that  must  be  made,  or  to  name  the  maximum  charge  for 
the  particular  service  in  controversy-,  which  the  court  will  approve,  but 
the  decree  is  that  the  item  shall  "  be  decreased  "  either  generally  or  to 
a  sum  named.  The  schedule  of  charges  must  be  revised  accordingly 
by  the  companv  defendant,  and  such  revision  may  be  compelled  in  the 
same  manner  that  the  decree  of  the  same  court  maj'  be  enforced  in 
other  cases. 

We  do  not  think  this  supervisory  power  would  justify  the  court  in 
preparing  a  tariff  of  water  rents  and  commanding  a  corporation  to 
furnisli  water  to  the  public  at  the  rates  so  fixed.  This  would  involve  a 
transfer  of  the  management  of  the  property,  and  the  business  of  a 
solvent  cor|)oration,  from  its  owners  to  a  court  of  equity,  for  no  other 
reason  than  that  the  court  regarded  some  one  or  more  of  the  charges 
made  by  the  company  as  too  high.  The  Act  of  1874  contemplates  no 
such  radical  departure  from  established  rules  as  this,  but  provides 
simply  for  the  protection  of  the  citizen  from  extortionate  charges 
speciHcaliy  pointed  out  and  complained  of  by  petition.  This  leads  us 
to  the  second  question  raised,  viz.  :  b\'  what  rule  is  the  court  to  deter- 
mine what  is  reasonable,  and  what  is  oppressive?  Ordinarily  that  is  a 
reasonable  charge  or  system  of  charges  which  yields  a  fair  return  upon 
the  investment.  Fixed  charges  and  the  costs  of  maintenance  and 
operation  must  first  be  provided  for,  then  the  interests  of  tlie  owners 
of  the  property  are  to  be  considered.  They  are  entitled  to  a  rate  of 
return,  if  their  propert}-  will  earn  it,  not  less  than  the  legal  rate  of 
interest ;  and  a  S3'stem  of  charges  that  yields  no  more  income  than  is 
fairly  required  to  maintain  the  plant,  pa}'  fixed  charges  and  operating 
expenses,  provide  a  suitable  sinking  fund  for  the  payment  of  debts, 
and  pay  a  fair  profit  to  the  owners  of  the  propert}',  cannot  be  said  to 
be  unreasonable.  In  determining  the  amount  of  the  investment  l)v  the 
stockholders  it  can  make  no  difference  that  mone}'  earned  b}-  the  cor- 
poration, and  in  a  position  to  be  distributed  by  a  dividend  among  its 
stockholders,  was  used  to  pay  for  improvements  and  stock  issued  in 
lieu  of  cash  to  the  stockholders.     It  is  not  necessary  that  the  money 


332  BRYMER   V.    BUTLER   WATER    CO. 

should  first  be  paid  to  the  stockholder  and  then  returned  by  liim  in 
payment  for  new  stock  issued  to  him.  The  net  earnings,  in  equitj-, 
belonged  to  him,  and  stock  issued  to  him  in  lieu  of  the  money  so  used 
that  belonged  to  him  was  issued  for  value,  and  represents  an  actual 
investment  bj'  the  holder.  If  the  company  makes  an  increase  of  stock 
that  is  fictitious,  and  represents  no  value  added  to  the  property  of  the 
corporation,  such  stock  is  rather  in  the  nature  of  additional  income 
than  of  additional  investment.  This  whole  subject  was  brought  to  the 
attention  of  the  learned  judge  b}-  a  request  that  he  should  find  as  a 
matter  of  law  that  the  reasonableness  of  the  charges  must  be  deter- 
mined with  reference  to  the  expenditure  in  obtaining  the  suppl}-,  and 
providing  for  a  fund  to  maintain  the  plant  in  good  order,  and  pay  a  fair 
profit  upon  the  mone^'  invested  by  the  owners,  and  that  a  rate  which 
did  no  more  than  this  was  neither  excessive  nor  unjust.  This  the 
learned  judge  refused  to  find,  saying  in  repl}'  to  the  request,  "  we  have 
no  authorit}'  for  such  a  ruling,  and  it  would  be  unjust  to  the  consumer 
who  would  have  to  pay  full  cost  of  the  water,  provide  a  sinking  fund, 
secure  a  reasonable  profit  upon  the  investment,  and  have  no  voice  in 
the  management  of  the  business  of  the  company.  The  act  of  assembly 
in  this  regard  can  bear  no  such  construction." 

This  ruling  cannot  be  sustained.  The  cost  of  the  water  to  the  com- 
pany includes  a  fair  return  to  the  persons  who  furnished  the  capital  for 
the  construction  of  the  plant,  in  addition  to  an  allowance  annuall}'  of  a 
sum  sufficient  to  keep  the  plant  in  good  repair  and  to  pay  any  fixed 
charges  and  operating  expenses.  A  rate  of  water  rents  that  enables 
the  company  to  realize  no  more  than  this  is  reasonable  and  just.  Some 
towns  are  so  situated  as  to  make  the  procurement  of  an  ample  suppl}' 
of  water  comparativel}'  inexpensive.  Some  are  so  situated  as  to  make 
the  work  both  difficult  and  expensive.  What  would  be  an  extortionate 
charge  in  the  first  case  might  be  the  very  least  at  which  the  water  could 
be  afforded  in  the  other.  The  law  was  correctly  stated  in  the  defend- 
ant's request,  and  the  court  was  in  error  in  refusing  it.  But  we  think 
the  court  had  no  power  to  adopt  for,  and  enjoin  upon,  the  company  a 
comprehensive  schedule  like  that  incorporated  into  the  decree  in  this 
case.  The  decree  found  that  the  water  supplj'  furnished  by  the  defend- 
ant company  was  abundant  and  "  reasonabl}'  pure  and  fit  for  public 
use,"  but,  without  an}-  adjudication  that  any  particular  charge  or  charges 
complained  of  were  excessive  and  must  be  decreased,  he  made  a  decree 
that  "  the  water  rates  of  the  defendant  company  from  March  1,  1896, 
to  be  charged  and  collected  from  the  plaintiffs  for  water  by  the  defend- 
ant company  to  the  plaintiffs  shall  be  as  follows  :  "  Then  follows  a 
table  filling  two  and  a  half  pages  of  the  appellant's  paper-book,  and 
providing  specifically  for  domestic  rates,  for  liveiy,  hotel,  and  trading 
stables,  for  hotels  and  boarding  houses,  for  fountains,  steam  engines, 
schools,  motors,  public  buildings,  special  rates,  and  meter  rates,  sub- 
ject to  provision  that  "when  the  water"  which  the  same  decree  had 
just  pronounced  to  be  reasonably  pure  and  suitable  for  domestic  use 


STEEXERSON  V.   GREAT  NORTHERN  RAILWAY.        333 

"  is  properly  filtered  the  charges  may  be  increased  twent}-  per  cent." 
The  school  district  of  Butler  was  not  a  part}-  complainant  in  this  case, 
nor  was  the  county  of  Butler,  but  both  were  taken  under  ihe  protection 
of  the  court  and  specifically  provided  for  bj'  the  decree.  Fountains 
are  luxuries.  The  question  wliether  tlie  police  power  of  the  State  can 
be  successfully  invoked  to  cheapen  the  price  of  water  furnished  for 
j:)urposes  of  display-  or  the  mere  giatification  of  one's  taste,  is  at  least 
open  to  discussion,  but,  without  discussion,  it  is  disposed  of  by  this 
decree,  and  the  price  reduced.  In  short,  upon  a  general  complaint 
that  the  rates  charged  by  the  defendant  were  too  high,  without  specifi- 
cation of  the  particular  charges  that  were  alleged  to  be  excessive,  the 
court  has  undertaken  to  revise  the  entire  schedule  of  prices,  and 
instead  of  directing  the  company  to  decrease  the  objectionable  charges, 
has  formulated  an  entirel}'  new  schedule  of  prices,  covering  all  of  the 
business  of  the  company.  This  new  schedule  it  has  framed  upon  the 
mistaken  basis  adopted  and  stated  in  the  third  conclusion  of  law 
already  considered.  This  action  is  not  authorized  by  the  Act  of  1874. 
It  is  not  the  hearing  of  a  complaint  against  the  charges  made  by 
the  company  and  a  decision  of  the  controversy  so  arising,  but  it  is  the 
assumption  of  a  power  to  frame  a  schedule  of  prices  covering  the 
entire  business  of  the  company,  with  all  its  customers,  many  of  whom 
are  not  even  complaining  of  the  rates  paid  by  them.  The  framing  of 
such  a  general  schedule  is  ordinarily  the  right  of  the  company.  The 
correction  of  this  schedule  when  framed,  whenever  it  may  work  injus- 
tice and  hardship  is  the  prerogative  of  the  court,  and  one  which  should 
be  fearlessl}-  exercised. 

For  reasons  now  given  this  decree  cannot  be  affirmed,  but  under  the 
peculiar  circumstances  surrounding  this  case  we  cannot  enter  a  simple 
decree  of  reversal. 


STEENERSON   v.   GREAT   NORTHERN   RAILWAY   CO. 

Supreme  Court  of  Minnesota,  1897. 

[69  Minn.  353.1] 

The  plaintifl",  Elias  Steenerson,  in  1893  filed  a  complaint  with  the 
Railroad  and  Warehouse  Commission,  complaining  that  the  tariff  of 
charges  of  the  Great  Northern  Railway  Company  for  the  transportation 
of  wheat,  oats,  barley,  and  other  grains  from  Crookston,  Fisher,  and 
East  Grand  Forks,  to  the  terminals  Minneapolis,  Duluth,  and  St.  Paul, 
•were  unjust  and  unreasonable,  in  that  they  were  at  least  one-third  too 
high,  and  asked  that  the  same  be  reduced  to  and  fixed  at  twelv^e  cents 
l^er  hundred  pounds   between  Crookston  and  either  of  said  terminals, 

1  This  caae  is  abridged.  —  Ed. 


334  STEENERSON   V.    GREAT   NOltTIIERN   RAILWAY. 

and  between  other  stations  on  said  railway  and  said  terminals  in  pro- 
portion, or  to  a  just  and  reasonable  rate.  The  defendant  compan\' 
made  answer  to  such  complaint,  admitted  tlie  existence  of  charges  as 
alleged  in  the  complaint,  and  alleged  that  its  rates  and  (diarges,  '•'in- 
cluding those  in  question,"  were  in  all  respects  reasonable  and  just. 

Mitchell,  J.  ...  1.  It  must  now  be  accepted  as  the  settled  law 
that,  when  rates  of  charges  bv  railway  companies  have  been  fixed  b}- 
the  legislature  or  a  commission,  the  determination  of  tlie  question  ' 
whetlier  such  rates  are  "  reasonal)le  "  or  "  unreasonable  "  is  a  judicial 
function.  But  this  is  so,  not  because  the  fixing  of  rates  is  a  judicial 
function  (for  all  the  authorities  agree  that  it  is  a  legislative  one),  luit 
solely  by  virtue  of  the  constitutional  guarant}'  that  no  one  shall  be  de- 
prived of  his  propert}'  without  due  process  of  law.  Therefore  the  onl}' 
function  of  the  courts  is  to  determine  whether  the  rates  fixed  violate 
this  constitutional  principle. 

Courts  should  be  very  slow  to  interfere  with  the  deliberate  judgment 
of  the  legislature  or  a  legislative  commission  in  the  exercise  of  what  is 
confessedly  a  legislative  or  administrative  function.  To  warrant  such 
interference,  it  should  clearly  appear  that  the  rates  fixed  are  so  grossl}' 
inadequate  as  to  be  confiscatory,  and  hence  in  violation  of  the  constitu- 
tion. It  is  not  enough  to  justify  a  court  in  holding  a  rate  "  unreason- 
able," and  hence  unconstitutional,  that,  if  it  was  its  province  to  fix 
rates,  it  would,  in  its  judgment,  have  fixed  them  somewhat  higher. 
Any  such  doctrine  would  result,  in  effect,  in  transferring  the  power  of 
fixing  rales  from  the  legislature  to  the  courts,  and  making  it  a  judicial, 
and  not  a  legislative,  function.  When  there  is  room  for  a  reasonable 
ditference  of  opinion,  in  the  exercise  of  an  honest  and  intelligent  judg- 
ment, as  to  the  reasonableness  of  a  rate,  the  courts  have  no  right  to 
set  up  their  judgment  against  that  of  the  legislature  or  of  a  legislative 
commission.  In  m\'  opinion,  it  is  only  when  a  i*ate  is  manifestl}'  so 
grossh'  inadequate  that  it  could  not  have  been  fixed  in  the  exercise  of 
an  honest  and  intelligent  judgment  that  the  courts  have  any  right  to 
declare  it  to  be  confiscatory.  This  seems  to  be  substantially  the  doc- 
trine suggested  in  Spring  v.  Schottler,  110  U.  S.  347-354,  4  Sup. 
Ct.  48,  which,  so  far  as  I  can  discover,  is  the  first  case  in  which  that 
court  suggested  any  modification  or  limitation  of  the  doctrine  of  the 
so-called  "  Granger  Cases."  And  I  think  it  is  the  doctrine  which  the 
courts  must  finally  settle  down  on,  unless  they  are  prepared  to  assume 
the  function  of  themselves  fixing  rates. 

2.  What  is  a  reasoualile  rate  is  a  most  diflBcult  question,  and  it  is 
doubtful  whether  any  single  rule  for  determining  it  can  be  laid  down 
that  would  be  complete,  and  alike  applicable  to  all  cases.  But  as  good 
a  general  rule  as  I  have  found  is  that  stated  by  counsel  for  the  North- 
ern Pacific  Railway  Company  in  this  case,  to  wit : 

''  If  a  railroad  is  built  and  operated  wisely  and  economically  ;  if  it  is 
located  where  public  need  requires  it,  where  there  is  business  to  justify 
its  existence,  and  constructed  so  as  to  be  fit  and  well  adapted  for  the 


STEENERSON   V.   GREAT   NORTIIERX   RAILWAY.  335 

business  which  it  aims  to  accoinniodate, — -it  should  be  entitled  to  re- 
turn as  good  interest  [on  the  cost  of  the  reproduction  of  the  road]  as 
capital  invested  in  the  average  of  other  lines  of  enterprise." 

It  seems  to  me  that  it  follows,  as  corollaries  from  this  rule,  that  — 
First,  the  cost  of  reproduction  must  be  estimated  on  a  present  cash 
basis,  and  that  it  can  make  no  difference  whether  a  road  was  originally 
built  with  cash  capital  paid  in  by  the  stockholders,  or  with  borrowed 
money  secured  by  mortgage  on  tlie  propert}- ;  and,  second,  a  rate  ma}* 
be  reasonable  during  times  of  general  financial  and  business  depression, 
when  capital  invested  in  all  lines  of  enterprise  is  yielding  a  small  re- 
turn, which  would  be  unreasonable  in  prosperous  times,  when  capital 
invested  in  business  enterprises  is  yielding  a  much  larger  return. 
There  is  no  constitutional  principle  which  guarantees  the  capital  in- 
vested in  railroads  immunity  from  business  vicissitudes  to  which  capital 
invested  in  all  other  enterprises  is  subject.  These  propositions  are 
fully  discussed  in  the  opinion.  The  courts  should  take  notice  of  the 
general  depression  in  business  prevailing  in  1894. 

3.  Where  capital  (including  labor)  invested  in  the  production  of 
an}-  article  or  commoditv  is  comparatively  unremunerative,  yielding 
but  a  small  return,  a  rate  for  the  transportation  of  such  article  or  com- 
modity may  be  reasonable,  although,  if  the  carrier  was  required  to  do 
all  his  business,  at  rates  fixed  on  a  corresponding  basis,  such  rates 
would  be  unreasonable,  to  the  extent  of  being  confiscatory.  This  is 
but  an  enlarged  application  of  a  principle  already  suggested.  It  is  a 
principle  upon  which  railroads  themselves  act  every  day  in  fixing  rates, 
recognizing  as  they  do  that  rates  are  largely  dependent  upon  compe- 
tition among  producers  or  shippers.  Of  course,  this  proposition  has 
its  limitations,  but  it  is  unnecessary  to  discuss  them  here.  The  courts, 
I  think,  should  take  notice  of  the  small  profit  in  raising  grain  in  Min- 
nesota in  and  about  1894,  owing  to  the  comparatively  low  prices  then 
prevailing. 

I  will  not  go  into  any  discussion  of  the  evidence,  or  any  analysis  of 
the  labyrinth  of  figures  and  estimates  presented  in  the  testimony. 
That  has  been  ver}-  exhaustively,  and,  as  I  think,  correctly,  done  b}* 
Justice  Canty.  Applying  the  rules  I  have  suggested  to  the  evidence, 
I  do  not  think  any  court  would  be  justified  in  holding  that  the  railroad 
company  has  satisfactorily  proved  that  the  rates  fixed  by  the  commis- 
sion for  the  transportation  of  grain  are  "  unreasonable  ;  "  that  is,  if 
enforced,  they  would,  be  confiscatory. 


336      MILWAUKEE   ELECTRIC   RAILWAY,    ETC.   CO.   V.   MILWAUKEE. 


MILWAUKEE    ELECTRIC    RAILWAY    AND    LIGHT    CO. 
V.    CITY    OF   MILWAUKEE. 

Circuit  Court  of  the  United  States,  1898. 

[87  Fed.  577.1] 

Final  hearing  in  two  actions,  —  one  wherein  the  street  railway  com- 
pan}'  is  complainant,  and  the  other  brought  by  the  trustee  for  the 
bondholders, — each  seeking  a  decree  declaring  null  and  void,  in  re- 
spect of  the  complainant,  a  purported  ordinance  of  the  defendant  city 
entitled  "An  ordinance  to  regulate  the  rate  of  fare  upon  the  street 
railways  in  the  city  of  Milwaukee,  and  providing  for  the  sale  of  pack- 
ages of  tickets  thereon,"  approved  June  11,  1896,  and  to  perpetuall}' 
enjoin  its  enforcement. 

Seaman,  District  Judge.  .  .  .  The  difficulties  presented  in  this  case 
do  not,  therefore,  rest  in  any  doubt  as  to  the  general  principles  which 
must  be  observed,  nor  in  ascertaining  the  actual  facts  disclosed  by  the 
testimony  as  a  whole,  so  far  as  material  to  this  controvers}'.  Although 
the  testimony  on  the  part  of  complainant  makes  a  volume  of  1,445 
printed  pages,  and  that  of  the  defendant  163  pages,  the  only  sub- 
stantial contentions  of  fact  relate  to  items  of  expenditure  and  claims 
of  credit  by  way  of  depreciation,  presented  on  behalf  of  the  complain- 
ant as  entering  into  the  showing  of  net  revenue,  and  to  the  present  or 
reproduction  value  of  the  plant.  And  it  may  be  remarked,  in  passing, 
that  this  testimony  is  so  well  classified  and  indexed,  with  sucli  fair 
summaries  in  the  briefs,  that  the  task  of  examination  has  been  materi- 
ally lightened.  But  the  sole  embarrassment  in  the  inquiry  arises  from 
the  wide  divergence  which  appears  between  the  actual  and  undisputed 
amount  of  the  cash  investment  in  the  undertaking,  and  the  estimates, 
on  either  hand,  of  the  amounts  for  which  the  entire  plant  could  now  be 
reproduced,  in  the  view  that  the  line  of  authorities  referred  to  does  not 
attempt  to  define  or  specif}'  an  exact  measure  or  state  of  valuation, 
and  leaves  it,  within  the  principles  stated,  that  "  each  case  must  de- 
pend upon  its  special  facts."  Therefore  the  twofold  inquiries  of 
reasonableness  above  indicated  are  of  mixed  law  and  fact,  and  start 
with  the  presumption,  in  favor  of  the  ordinance,  (1)  that  the  prevailing 
rates  exacted  too  much  from  the  public,  and  (2)  that  those  prescribed 
are  reasonable. 

1.  Are  the  terms  and  rates  fixed  by  the  company-  excessive  demands 
upon  the  public,  in  view  of  the  service  rendered  ?  The  Milwaukee 
Street  Railwa}'  Compan}-,  of  which  the  complainant  is  the  successor 
in  interest,  was  organized  in  December,  1890,  for  the  purpose  of 
establishing  an  electric  street  railway  system,  which  should  cover  the 
entire  field  for  the  city  of  Milwaukee.     There  were  then  in  operation 

1  This  case  is  abridged.  —  Ed. 


MILWAUKEE   ELECTRIC    RAILWAY,    ETC.    CO.    V.    MILWAUKEE.      337 

five  distinct  lines,  owned  separately,  operated  mainly  by  iiorse  or  mule 
power,  each  charging  sei)arate  fares,  and  having  no  system  of  transfers. 
It  is  conceded  that  the  service  was  slow  and  antiquated,  was  not  well 
arranged  for  the  wants  of  the  cit}',  and  was  generally  inadequate  and 
unsatisfactor}-.  As  the  old  lines  occupied  the  principal  thoroughfares, 
and  the  public  interest  prevented  the  allowance  of  double  lines  in  such 
streets,  the  improvement  could  not  be  made  effective  unless  those  lines 
were  purchased,  or  in  some  manner  brought  into  the  proposed  system. 
They  were  gradually  acquired,  at  prices  which  may  apijear  excessive 
when  measured  by  results,  and  during  the  ensuing  period  of  about 
three  rears  the  work  of  installing  the  new  s3-stem  was  carried  on, 
involving  an  entire  reconstruction  and  rearrangement  of  the  old  lines 
and  extensions,  and  new  and  improved  equipments  tliroughout,  at  an 
expenditure  of  over  $3,000,000,  aside  from  tlie  cost  of  the  old  lines. 
As  a  result,  at  the  time  the  ordinance  was  adopted,  the  mileage  of 
tracks  had  increased  from  the  previous  aggregate  of  110  miles  to 
142.89  miles,  reaching  every  section  of  the  cit}',  with  shorter  and 
better  routes,  and  furnishing  38  transfer  points,  with  a  universal 
transfer  system,  —  a  feature  of  special  value  to  the  pubUc,  as  a  single 
fare  of  five  cents  gives  a  maximum  length  of  ride  more  than  double  tiie 
old  arrangement.  The  service  was  improved  in  speed  and  regularit}' 
50  per  cent  or  more,  with  better  cars  and  less  inconvenience,  and  it 
appears  beyond  question  that  it  was  generally  more  satisfactory  and 
economical  from  the  standpoint  of  the  public.  In  other  words,  the 
service  was  materially  enhanced  in  its  value  to  the  public,  without  any 
increase  in  either  normal  or  maximum  charges,  affording  rides  for  five 
cents  which  had  previously  cost  two  and  even  three  fares  ;  and  against 
all  these  advantages  there  appears  only  a  single  benefit  extended  b}- 
three  out  of  the  five  constituent  companies  which  is  not  given  under 
the  new  arrangement,  namely,  in  the  sale  of  commutation  tickets,  —  an 
omission  for  which  there  seems  to  be  plausible  excuse  and  offset  in  the 
universal  system  of  transfers,  aside  from  the  other  advantages.  Surel3', 
therefore,  no  imposition  upon  the  public  appears  through  any  compari- 
son between  the  old  and  the  new  service  and  rates.  Nor  does  it  find 
any  countenance  in  comparison  with  either  service  or  rates  which  pre- 
vail in  other  cities,  for  it  is  shown  in  this  record,  and  is  undisputed, 
that  the  five-cent  rate  is  almost  universal ;  that  commutations  are 
exceptional  in  cities  of  like  class,  and  arise  out  of  exceptional  condi- 
tions, whicli  are  not  fairh*  applicable  here;  and  that  instances  of  lower 
rates  are  so  clearly  exceptional  that  they  cannot  have  force  for  any 
aflflrmative  showing  of  reasonableness  in  the  instant  case.  Neverthe- 
less, with  the  burden  of  proof  on  the  defendant,  these  considerations 
are  not  controlling,  unless  it  further  appears  that  the  earnings  of  the 
company  are  insufficient,  in  view  of  the  amount  wjiich  ma}'  justly  be 
regarded  as  the  investment  in  the  undertaking,  to  warrant  the  making 
of  rates  and  terms  which  are  more  advantageous  to  the  public.  The 
interests  of  the  public  in  its  highways  are  paramount,  and,  if  the  service 

22 


338      MILWAUKEE    ELECTRIC    RAILWAY,    ETC.    CO.    V.    MILWAUKEE. 

can  reasonably  be  afforded  more  cheaply  in  Milwaukee  than  in  other 
cities  of  like  class,  the  community  is  entitled  to  the  just  benefit  of  any 
possible  conditions  which  may  tend  to  that  result.  The  issue  in  tliat 
regard  must  be  met  under  the  second  branch  of  inquiry,  but  I  am 
clearl}-  satisfied  that  this  first  question  must  be  answered  in  favor  of 
the  complainant,  if  the  evidence  sustains  its  claim  that  lower  rates 
would  be  confiscatory,   and  not  compensatory. 

2.  Are  the  earnings  of  the  property  insufficient,  in  view  of  all  the 
conditions,  to  justify  this  reduction  in  the  rates  of  fare?  Solution  of 
this  inquiry  depends  upon  the  showing  (1)  of  earning  capacity  at  exist- 
ing rates,  and  (2)  of  the  "  amount  reall}'  and  necessaril^y  invested  in 
the  enterprise,"  and  upon  the  conclusion  (3)  whether  the  ratio  of 
return  upon  tlie  investment  is  excessive.  In  the  statements  which  are 
referred  to  both  parties  have  adopted  a  ratio,  so  far  as  necessar}-,  to 
separate  the  electric  ligliting  plant  owned  by  the  complainant,  so  that 
the  statements  which  follow  relate  exclusively  to  the  street  railway 
l)lant,  except  where  otherwise  mentioned. 

First.  The  question  of  earning  capacity'  is  confined  by  the  testimon}' 
to  the  results  of  three  years'  operation,  being  after  the  system  was 
fairly  installed,  and  inclusive  of  the  year  in  which  the  ordinance  was 
adopted,  namely,  1894,  1895,  and  1896.  It  is  suggested  on  behalf  of 
the  defendant  that  those  years  were  exceptional,  for  one  cause  and  an- 
other, and  are  not  a  fair  criteiion  for  future  earnings  under  more 
favorable  circumstances  ;  but  the  suggestion  is  without  force  in  this 
case,  because  the  ordinance  operates  upon  these  very  conditions,  and 
must,  of  course,  be  [)redicated  upon  them, —upon  existing  facts,  and 
not  upon  mere  future  possil)ilities,  —  and,  so  determined,  the  instant 
case  cannot  affect  rights  under  new  conditions. 

The  proofs  on  the  part  of  tlie  complainant  furnish,  in  detail,  from 
tlie  books  of  account,  the  gross  earnings,  tlie  various  items  of  expense 
and  of  charges  for  which  deduction  is  claimed,  excluding  any  payments 
of,  or  allowance  for,  interest  on  the  bonded  indebtedness,  and  state  the 
net  earnings  as  follows:  In  1894,  $64,868.77;  in  1895,  $269,202.30; 
in  1896,  $100,628.81.  In  this  showing  it  appears  that  deduction  of 
$247,324.88  is  made  in  1894  for  "  depreciation,"  being  the  amount 
apportioned  in  that  year  to  meet  the  alleged  annual  loss  by  physical 
depreciation  of  the  plant,  to  keep  the  capital  intact.  No  such  deduc- 
tion is  made  in  1895  and  1896,  because  not  shown  in  the  books, 
although  it  is  insisted  that  like  credit  is  due  in  each  j'car,  for  the 
purposes  of  this  case. 

The  defendant  concedes  the  correctness  of  the  showing  as  to  the 
gross  earnings,  but  disputes  certain  large  items  for  which  deductions 
are  made  in  the  above  statement,  corrects  some  items,  and  denies  that 
an}'  allowance  should  l»c  made  for  depreciation.  Aside  from  the  fact 
that  reports  and  statements  of  financial  condition  made  from  time  to 
time  by  the  compau}'  omit  many  of  the  deductions  here  asserted,  these 
contentions  on  the  part  of  the  defendant  rest  solely  upon  the  books  of 


MILWAUKEE    ELECTRIC   RAILWAY,   ETC.    CO.   V.    MILWAUKEE.      339 

account  kept  by  the  compati}-,  and  the  testimony  of  Mr.  De  Grasse, 
stating  his  conclusions  as  an  expert  accountant  from  examination  of 
such  books,  with  tlie  following  result  as  to  net  earnings  :  In  1894, 
8387,074.70;  in  1895,  $479,621.11;  in  189G,  $66,520.99.  But  this 
total  for  1896  erroneously  includes  an  allowance  of  Si 60, 550  paid  for 
interest  on  bonds,  which  should  be  excluded  on  the  basis  assumed,  and 
would  make  the  net  earnings  for  that  year,  on  his  computation, 
$227,070.99.  In  this  statement  the  allowance  for  depreciation  in  1894 
is  excluded  by  Mr.  De  Grasse,  because  that  item  was  in  fact  charged 
off  upon  change  in  the  system  of  bookkeeping.  He  also  excludes  large 
amounts  of  undoubted  expenditures  upon  the  hypothesis  that  they 
belong  to  "construction  account,"  as  covering  permanent  improve- 
ments, and  not  to  "  expense  of  maintenance,"  as  stated ;  rejects 
certain  payments  as  accruing  on  account  of  previous  years,  and  certain 
sums  apportioned  and  charged  off  to  meet  damage  claims  ;  and  Uiakes 
corrections  as  to  taxes,  for  which  the  book  enti-ies  were  made  in 
advance  upon  estimates  bv  way  of  ap[)ortiouing  the  expenses  of  the 
year,  pending  litigation  and  other  causes.  However  valuable  this 
testimony  is  for  analysis  of  the  bookkeeping  methods  and  for  correction 
of  certain  charges,  it  is  clearly  insufficient,  witiiout  other  support,  to 
contradict  the  undisputed  testimony,  both  positive  and  expert,  on  the 
part  of  complainant,  which  verifies  substantially  its  contention  upon 
the  disputed  subjects  of  deduction,  namel}',  that  the  expenditures  so 
charged  were  largely,  if  not  wholly,  of  such  nature  as  to  justify  de- 
duction for  "  maintenance  ;  "  and  that  depreciation  is  a  well-recognized 
fact  in  all  such  plants,  for  which  allowance  must  be  made  to  save  the 
capital  from  impairment,  without  regard  to  any  question  of  its  entry 
upon  the  books. 

Making  allowances  for  maintenance  alone,  in  accordance  with  the 
analvsis  presented  by  the  expert  witnesses  Goodspeed,  Coffin,  McAdoo, 
and  Beggs,  taking  in  each  instance  the  estimate  most  favorable  to  the 
defendant,  I  am  satisfied  that  the  defendant's  claim  of  net  earnings 
must  be  materially  reduced,  and  that  the  largest  amounts  which  can 
be  assumed  upon  its  theory,  excluding  an}'  allowance  for  depreciation 
(except  that  for  1894  the  "■maintenance"  allowance  is  increased,  to 
bring  it  —  the  general  allowance  —  up  to  the  minimum  estimate  by  the 
experts),  would  approximate  the  following  sums  : 

In  1894 $230,000 

In  1895 340,000 

In  1896 115,000 


8685,000 
—  making  the  average  earnings  per  year,  say,  8228,333. 

In  reference  to  the  element  of  depreciation,  the  witness  Beggs  gives 
the  following  explanation  : 

"  I  think  experience  has  demonstrated  that  the  utmost  life  that  can 
be  expected  from  the  best  road-bed  that  can  be  laid  to-day  would  be, 


340      MILWAUKEE   ELECTRIC   RAILWAY,   ETC.   CO.    V.    MILWAUKEE. 

at  the  outside,  ten  to  twelve  years,  when  it  would  have  to  be  almost 
entirely  renewed.  The  Milwaukee  Company  is  in  that  condition  to- 
day, because  of  the  different  periods  tliat  their  track  went  down,  and 
due  to  the  fact  that  it  was  not  all  put  down  at  one  time,  and  it  must 
now  of  necessity  commence  to  lay  about  12  miles  of  track  annually, 
being  about  one-twelfth  of  its  total  mileage;  and  will  be  required, 
whether  they  wish  to  or  not,  to  lay  that  amount  annually  hereafter, 
and  will  tiiereby  be  keeping  their  tracks  fairly  up  to  the  standard. 
The  same  applies,  I  might  sa}',  to  the  equipment.  In  my  estimate  I 
have  calculated  that  the  Milwaukee  Company  nmst  do  this  year,  which, 
as  a  matter  of  fact,  it  is  doing,  what  it  did  last  year,  —  in  other  words, 
put  on  not  less  than  20  of  the  most  modern,  best-constructed  equip- 
ments, thereby  keeping  its  standard  up  to  the  minimum  it  has  now,  of 
240  equipments  ;  because  I  think  it  is  fair  to  assume  that  the  average 
life  of  the  double  equipment,  taken  as  a  whole,  will  not  exceed  twelve 
years,  the  life  of  the  motor  being  somewhat  less  than  that,  and  that  of 
the  car  we  hope  ma}'  exceed  it  possibl}'  several  years,  —  I  mean  the  car 
bodies  ;  but  that,  in  the  main,  we  hope  that  we  will  get  an  average  life 
of  twelve  years  out  of  them.  So,  taking  20  equipments  annually,  you 
would  keep  to  your  standard  of  240  equipments,  which  is  absolutely 
necessary  to  maintain  —  to  operate  —  tiie  Milwaukee  Street  Railway. 
I  mean  cars  complete,  with  motors  and  complete  electrical  equipment." 

For  the  causes  thus  stated,  within  general  rules  which  are  well 
known,  it  is  manifest  that  this  element  must  be  taken  into  account 
before  it  can  be  determined  that  earnings  derived  from  a  plant  are 
excessive  ;  and  in  the  same  line  there  is  much  force  in  the  argument 
of  counsel  that  consideration  should  also  be  given  to  the  factor  of 
depreciation  by  amortization  of  franchises,  as  all  the  franchises  in 
question  terminate  in  the  year  1924.  The  latter  item,  if  allowed, 
would  be  a  matter  of  simple  computation ;  but  a  just  measure  of 
physical  depreciation  seems,  to  some  extent,  although  only  partially, 
involved  in  provisions  for  maintenance,  and,  while  the  testimon}-  is 
very  full  and  instructive  upon  this  subject,  it  does  not  clear  the  case 
from  serious  difficulties  in  the  way  of  stating  a  definite  ratio  or  sum 
for  such  allowance.  I  am,  however,  clearly'  of  opinion  that  neither  of 
these  elements  is  essential  to  the  determination  of  the  issues  upon  any 
aspect  presented  by  the  testimony,  and  that  depreciation  ma}'  be  left 
to  serve  as  an  important  factor  of  safet}',  in  either  view. 

Second.  As  to  valuation :  For  purposes  of  the  compan}',  the  value 
of  the  property,  including  both  railway-  and  lighting  plants,  appears  to 
have  been  placed  at  $14,250,000,  represented  by  the  issue  of  bonds 
for  $7,2o0,000;  preferred  stock,  $3, . 500,000 ;  and  common  stock 
$3,500,000  ;  but  this  aggregate  was  clearly  excessive,  after  excluding 
the  electric  lighting  department,  and  on  no  view  can  it  be  taken  as  the 
basis  for  the  present  consideration.  The  statements  of  the  actual  cost 
of  the  constituent  street  railway  properties,  including  the  cash  invest- 
ment for  improvements,  are  necessarily  complicated,  from  the  fact  that 


MILWAUKEE    ELECTRIC    RAILWAY,    ETC.    CO.    V.    MILWAUKEE.      341 

payments  were  partU"  made  in  stocks  and  bonds,  and  the  aggregate 
amount  varies  according  to  tbe  ratio  of  valuation  placed  upon  the 
bonds  alone,  —  in  two  statements  in  which  the  stock  is  excluded,  and 
in  one  statement  which  values  both  stock  and  bonds, — -the  minimum 
being  $9,024,107.85,  and  the  maximum  $11,313,829.84.  The  former 
amount  was  subsequentl}'  modified  (page  46o,  Complainant's  Proof), 
making  the  statement  of  cost  $8,885,644.17;  and  as  this  excludes 
anv  valuation  of  stock,  and  places  the  value  of  the  bonds  at  the  dis- 
count agreed  upon  between  the  parties,  which  also  seems  fair,  it  ma}' 
justh'  be  taken  as  representing  the  true  amount  invested.  But  adop- 
tion of  this  purchase  amount  does  not  meet  the  issue,  as  it  is  the  value 
of  the  investment,  and  not  the  amount  paid,  which  must  control.  On 
the  other  hand,  both  parties  introduce  testimony  placing  valuations 
upon  the  various  items  of  the  plant  as  it  exists  in  fact,  upon  the  basis 
of  its  reproduction  value.  This  amount,  as  stated  by  the  witnesses  for 
complainant,  aggregates  85,153,287.76;  while,  on  the  face  of  defend- 
ant's proofs,  the  value  of  the  tracks  and  equipment  is  placed  at 
$2,358,799  ;  the  real  estate  and  buildings  being  valued  separately, 
and  the  highest  valuation  of  the  real  estate  being  $236,949,  and  of  the 
buildings  $208,449,  making  the  aggregate  $2,804,197.  ]t  appears, 
however,  that  these  estimates  on  behalf  of  the  defendant  omit  27  miles 
of  track,  many  parcels  of  real  estate,  and  other  items,  so  that  counsel 
for  defendant  concedes  that  this  aggregate  should  be  increased  to 
$3,679,631.  The  wide  difference  in  these  amounts  is  mainly  due  to 
divergence  in  the  estimates  upon  tracks  and  equipment.  So  the 
amounts  on  real  estate  and  buildings,  after  allowance  for  the  omis- 
sions, would  appear  higher  on  the  valuations  submitted  bv  the  defend- 
ant than  those  of  the  other  side.  For  the  valuation  of  tracks  and 
equipment,  the  defendant  relies  upon  the  estimate  made  l\v  Mr. 
Partenheiraer,  a  witness  of  apparent  ability  and  experience  as  a  street 
railway  contractor,  engaged  in  business  at  Chicago  ;  but  his  examina- 
tion of  the  plant  was  cursorv,  being  made  within  three  days,  and  could 
not  give  the  detailed  information  upon  which  a  just  estimate  for  this 
inquiry  must  be  based,  and  it  is  coriceded  that  he  left  out  of  considera- 
tion many  important  items  (aside  from  the  error  in  mileage)  which 
should  enter  in  and  would  greatly  increase  the  amount  as  estimated  on 
his  basis.  Both  upon  its  face  and  by  reference  to  other  source  of  infor- 
mation, this  estimate  is  far  below  any  fair  valuation,  for  the  purpose  in 
view,  either  at  the  sum  stated  by  the  witness,  or  with  the  additions 
conceded  on  behalf  of  the  defendant;  the  former  amount  being  in  fact 
$320,000  short  of  the  actual  cash  expenditures  by  the  company  for 
construction  and  equipment.  Opposed  to  this,  the  estimate  for  com- 
plainant is  made  by  Mr.  Clark,  an  expert  of  distinction  in  this  line, 
who  gave  weeks  to  the  examination,  with  the  aid  of  a  corps  of  assis- 
tants, and  presents  the  results  in  detailed  statements,  so  that  his 
testimony  and  estimates  impress  me  as  well  founded  :  and  they  are 
supplemented   and    supported   by  the    testimony  of  Mr.   Coffin,   Mr- 


342      MILWAUKEE    ELECTRIC   RAILWAY,   ETC.   CO.   V.    MILWAUKEE. 

Payne,  and  other  witnesses,  and  b}'  comparative  showing  of  mileage 
valuations  in  Massachusetts,  which  appear  in  the  noteworthy  system 
of  reports  published  by  that  State.  1  am  satisfied  that  the  property  of 
complainant  represents  a  value,  based  solely  upon  the  cost  of  reproduc- 
tion, exceeding  $5,000,000.  And  I  am  further  satisfied  that  this 
amount  is  not  the  true  measure  of  the  value  of  the  investment  in  the 
enterprise.  It  leaves  out  of  consideration  any  allowance  for  necessary 
and  reasonable  investment  in  purchase  of  the  old  lines  and  equipments, 
which  were  indispensable  to  the  contemplated  improvement,  but  of 
which  a  large  part  was  of  such  nature  that  it  does  not  count  in  the 
final  inventory.  No  allowance  enters  in  for  the  large  investment 
arising  out  of  the  then  comparatively  new  state  of  the  art  of  electric 
railways  for  a  large  system,  having  reference  to  electrical  equipment, 
weight  of  rails,  character  of  cars,  and  the  like,  of  which  striking  in- 
stance appears  in  the  fact  that  the  electric  motor  which  then  cost 
about  $2,500  can  now  be  obtained  for  $800  ;  so  that  work  of  this  class 
was  in  tlie  experimental  stage  in  man}'  respects,  and  the  expenditures 
by  the  pioneer  in  the  undertaking  may  not  fairly  be  gauged  by  the 
present  cost  of  reproduction.  Of  the  $5,000,000  and  over  paid  for  the 
acquisition  of  the  old  lines,  it  would  be  difficult,  if  not  impossible,  from 
the  testimon}',  to  arrive  at  any  fair  a[)proximation  of  the  share  or 
amount  of  tangil)le  property  which  enters  into  the  valuation  in  this 
inventory.  It  does  appear  that  tiie  roadways  required  reconstruction 
with  new  rails  and  paving,  and  that  the  amount  stated  was  actually 
paid  by  the  investors,  making  their  investment  nearl}'  $9,000,000. 
How  much  of  tliis  may  be  defined  or  apportioned  as  the  amount  which 
was  both  "really  and  necessarily  invested  in  the  enterprise"  {vide 
Road  Co.  V.  Sandford,  supra)  I  have  not  attempted  to  ascertain, 
except  to  this  extent:  that  I  am  clearly  of  opinion  that  at  least 
$2,000,000  of  those  preliminary  expenditures  are  entitled  to  equi- 
table consideration,  as  so  invested,  beyond  the  reproduction  value,  if 
tlie  valuation  of  the  investment  is  not  otiierwise  found  sufficient  for  all 
the  purposes  of  this  case,  but  no  opinion  is  expressed  in  reference 
to  the  remaining  $1,885,644. 

Third.  The  final  inquiry,  whether  the  net  earnings  shown  are  in 
excess  of  or  equal  to  a  just  return  upon  the  investment,  presents 
no  serious  difficult}',  under  the  premises  above  stated.  Assuming 
$5,000,000  as  the  basis  of  investment,  the  ratio  of  earnings  would 
be  as  follows:  (1)  At  the  extreme  computations  of  defendant,  the 
yearly  average  would  be  $364,000,  whicii  would  yield  .072  per  cent ; 
(2)  at  the  complainant's  figures,  after  adding  the  corrections  for  taxes, 
the  return  would  be  .033  per  cent ;  (3)  at  the  amounts  which  are  above 
stated  as  my  deductions  from  the  testiraon}',  the  yearly  average,  being 
$228,333,  would  make  .045  per  cent.  Assuming  $7,000,000  as  the 
basis,  the  ratio  of  earnings  would  be,  upon  each  of  said  versions,  as 
follows:  For  the  first,  .052  per  cent;  for  the  second,  .023  per  cent; 
for  the  third,  .032  per  cent. 


METROPOLITAN   TRUST    CO.    V.   HOUSTON,    ETC.    RAILROAD.        343 

The  interest  rate  fixed  in  the  bonds  issued  by  the  company  is  5  per 
cent.  Tlie  rate  which  prevails  in  this  market,  as  sliovvn  by  the  un- 
controverted  testiraon}',  is  6  per  cent  for  real  estate  mortgages  and 
like  securities.  If  the  $5,000,000  basis  be  adopted,  surely  a  better 
rate  must  be  afforded  for  the  risks  of  investment  than  can  be  obtained 
on  securities  of  this  class,  in  which  there  is  no  risk.  Upon  the  basis 
of  $7,000,000,  which  is  more  logical  and  just,  the  5  per  cent  named  in 
the  bonds  is  clearly  not  excessive,  and  sliould  be  accepted  by  a  court 
of  equity  as  the  minimum  of  allowance  ;  and,  even  upon  the  defend- 
ant's partial  showing,  the  return  would  be  less  than  one-quarter  per 
cent  above  that,  with  the  large  margin  for  depreciation  left  out  of 
account. 

I  am  of  opinion  that  the  testimonv  is  not  only  convincing  in  support 
of  the  material  allegations  of  the  bill,  but  is  uncontradicted  and  con- 
clusive that  the  improved  service  received  by  the  public,  with  the 
universal  S3stem  of  transfers,  is  well  worth  the  five-cent  rate  charged 
therefor ;  that  the  compan}-  has  not  received  earnings  in  excess  of  an 
equitable  allowance  to  the  investors  for  the  means  necessarilv  invested 
in  furnisliing  such  service  ;  that  enforcement  of  the  ordinance  would 
deprive  complainant  of  propert}'  rights,  by  preventing  reasonable  com- 
pensation for  its  service  ;  and  that,  therefore,  the  ordinance  clearl}' 
violates  the  Constitution  of  the  United  States,  and  is  invalid.  Decree 
must  enter  accordingly,  and  for  an  injunction  as  prayed  in  the  bill. 


METROPOLITAN    TRUST    CO.    v.    HOUSTON    AND    TEXAS 
CENTRAL  RAILROAD  CO. 

Circuit  Court  of   United  States,  1898. 

[90  Fed.  Rep.  683.1] 

McCoRMiCK,  Circuit  Judge.  .  .  .  The  Houston  and  Texas  Central 
Railroad  Corapan}',  the  successor  to  the  Houston  and  Texas  Central 
Railway  Company,  has  a  mortgage  indebtedness  equal  to  aliout 
$34,000  to  tlie  mile  of  its  main  line,  and  has  stock  outstanding  to  the 
amount  of  $10,000,000,  making  its  stock  and  bonds  equal  to  the  sum 
of  about  $53,000  to  the  mile  of  its  main  line.  The  bill  in  this  case 
avers  that  the  defendant  company  and  its  predecessor  company  have 
necessarily  expended  in  cash  in  the  construotion  and  equipment  and 
betterment  of  the  lines  of  tlie  defendant  company  about  $62,000  per 
mile  of  its  said  railways ;  that  the  lines  of  railway  of  the  defendant 
company  have  at  all  times  been  operated  as  economicall}'  as  practi- 
cable ;  that  its  operathig  expenses  have  at  all  times  been  as  reasonable 

1  This  case  is  abridged — Ed. 


344        METROrOLITAN    TRUST   CO.    V.    HOUSTON,    ETC.    RAILROAD. 

and  low  in  amount  as  the}-  could  be  made  by  economy  and  judicious 
management;  that  the  couipany  has  at  all  times  secured  the  services 
of  its  officers  and  employees  as  cheaply  as  practicable,  and  has  employed 
no    more  than  was    necessary,    and    at    fair  and   reasonable  rates  of 
pay  ;  that  it  has  at  all  times  secured  all  supplies,  material,  and  property 
of  ever\'  character  used  in  the  operation  of  its  railway's  at  the  cheapest 
market  price,  and  at  rates  as  low  as  the  same  could  be  secured,  and 
has  secured    and  used  no  more  than  was  actually  necessary-  for  the 
operation  of  its  railways.     Substantially  the  same  allegation  is  made 
in  the  cross  bill,  and  both  are  affirmed  and  sustained  by  affidavits  of 
competent  -witnesses   offered   on    the   hearing  of   this    motion.      The 
valuation  placed  upon  the  property  of  this  railroad  corporation  by  the 
railroad  commission  of  Texas  is,  in  round  numbers,  S2 1,000  per  mile. 
This  statement  shows  the  vast  difference  between  the  estimates  made 
by  and  on  behalf  of  the  railroad  company  and  the  estimates  made  b}' 
the  railroad   commission  of   the  value  of  the   railroad's  property  on 
which  it  is  entitled  to  earn  some  profit.     It  seems  to  be  clear  from  the 
answer  of  the  commission,  the  tone  of  the  affidavits  which  it  offers  in 
support  of  its  answer,  and  the  argument  of  the  attorney-general  and 
the  assistant  attorncN'-general  who  represented  it  on  this  hearing,  that 
in   estimating  the  value  of  this  railroad  property   no  allowance   was 
made  for  the  favorable  location  of  the  same,  in  view  of  the  advance  in 
prosperity  of  the  country  through  which  it  runs,  and  the  increment  to 
its  value  due  to  the  settling,  seasoning,  and  permanent  establishment 
of  the   railways,   and  to  the  established    business  and  the  good  will 
connected  with  its  business,  which  has  been  established  through  a  long 
series  of  years,  and  all  of  which  ought  reasonably  to  be  considered  in 
fixing  the  value  of  the  property  and  the  capitalization  upon  which,  at 
least,  it  is  entitled  to  earn,  and  should  pay,  some  returns  by  the  way 
of  interest  or  dividends.     This  is  practically  the  oldest  railroad  in  the 
State.     A  few  miles  of  another  road  were  built  earlier,  but  this  road, 
running  throughout  the  whole  course  of  its  main  line  through  what  is 
now  the  most  populous  and  best  developed  portions  of  the  State,  and 
still  rapidly  increasing  in  population  and  development,  has  established 
a  business  that  would  not  and  could  not  be  disregarded  in  estimating 
the  value  of  the  railroad,  if  considered  solely  as  a  business  propert}' 
and  venture.     It  cannot  be  so  considered,  because  of  its  quasi-public 
nature.      Its  duties,  its   obligations,    and    its  liability   to  control  are 
elements  that  must  be  considered.     As  popularl}-  expressed,  the  rights 
of  the  people — the  rights  of  shippers  who  use  it  as  a  carrier  —  have 
to  be  regarded  ;  but,  as  judicially  expressed,  these  last  have  to  be  so 
regarded  as  not  to  disregard  the  inherent  and  reasonable  rights  of  the 
projectors,  proprietors,  and  operators  of  these  carriers.     It  is  settled 
tliat  a  State  has  the  right,  within  the  limitation  of  the  constitution,  to 
regulate  fares.     From  the  earliest  times  public  carriers  have  been  sub- 
ject to  similar  regulations  tlirough    general  law  administered  by  the 
courts,   requiring   that   the  rates    for  carriage  should  be  reasonable. 


METROPOLITAN   TRUST   CO.   V.    HOUSTON,   ETC.   RAILROAD.        345 

having  regard  to  the  cost  to  the  carrier  of  the  service,  the  value  of  the 
service  to  the  shipper,  and  the  rate  at  which  such  carriage  is  performed 
by  other  like  carriers  of  similar  commodities  under  substantially 
similar  conditions.  But  neither  at  common  law  nor  under  the  railroad 
commission  law  of  Texas  can  the  courts  or  the  cou)mission  compel 
the  carriers  to  submit  to  such  a  system  of  rates  and  cliarges  as  will  so 
reduce  the  earnings  below  what  reasonable  rates  would  i)roduce  as  to 
destroN'  the  propert}'  of  the  carrier,  or  appropriate  it  to  tlie  benefit  of 
the  public.  The  cost  of  the  service  in  carrying  any  one  particular 
shipment  may  be  difficult  to  determine,  but  the  cost  to  the  carrier  of 
receiving,  transporting,  and  delivering  the  whole  volume  of  tonnage 
and  number  of  passengers  in  a  given  period  of  time  must  include,  as 
one  of  its  substantial  elements,  interest  on  the  value  of  the  property 
used  in  the  service.  In  countries  conditioned  as  Texas  has  been  and 
is,  such  a  railroad  property  and  business  cannot  be  reproduced,  except 
substantially  in  the  same  manner  in  which  this  has  been  produced; 
that  is,  b}'  a  judicious  selection  of  location,  by  small  beginnings,  and 
gradual  advance  through  a  number  of  years,  more  or  less,  of  unpro- 
ductive growth.  The  particular  location  of  this  road,  of  course, 
cannot  be  reproduced,  and  it  cannot  be  appropriated  by  another 
private  or  quasi-public  corporation  carrier  bv  the  exercise  of  the  State's 
power  of  eminent  domain.  And,  even  if  the  State  should  proceed  to 
expropriate  this  property  for  the  purpose  of  taking  the  same  to  itself 
for  public  use,  the  I'jcation  of  this  road  cannot  be  appropriated,  any 
more  than  an}'  other  property  right  of  a  natural  person  or  of  a  corpo- 
I'ation  can  be  appropriated,  without  just  compensation.  It  is  therefore 
not  only  impracticable,  but  impossible  to  reproduce  this  road,  in  any 
just  sense,  or  according  to  any  fair  definition  of  those  terms.  And  a 
system  of  rates  and  charges  that  looks  to  a  valuation  fixed  on  so 
narrow  a  basis  as  that  shown  to  have  been  adopted  by  the  commission, 
and  so  fixed  as  to  return  onl}'  a  fair  profit  upon  that  valuation,  and 
which  permits  no  account  for  betterments  made  necessary  by  the 
growtli  of  trade,  seems  to  me  to  come  clearly  within  the  provision  of 
the  f'ourteenth  Amendment  to  the  Constitution  of  the  Uniteil  States, 
which  forbids  that  a  State  shall  deprive  any  person  of  property  without 
due  process  of  law,  or  den}'  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws.  It  is  true  that  railroad  property  may  be 
so  improvidently  located,  or  soimprovidentlv  constructed  and  operated, 
that  reasonable  rates  for  carriage  of  freights  and  passengers  will  not 
produce  an}'  profit  on  the  investment.  It  is  also  true  that  many  rail- 
roads not  improvidently  located,  and  not  improvidently  constructed, 
and  not  improvidently  operated  may  not  be  able,  while  charging 
reasonable  rates  for  carriage  of  freight,  to  earn  even  the  necessary 
running  expenses,  including  necessary  repairs  and  replacements.  And 
there  are  others,  or  may  be  others,  thus  constructed  and  conducted, 
which,  while  able  to  earn  operating  expenses,  are  not  able  to  earn  any 
appreciable  amount  of  interest  or  dividends  for  a  considerable  time 


346        METROPOLITAN   TRUST   CO.   V.    HOUSTON,    ETC.    RAILROAD. 

after  the  opening  of  their  roads  for  business.  This  is  true  now  of 
some  (;f  the  roads,  parties  to  these  bills.  At  one  time  or  another,  and 
for  longer  or  shorter  times,  it  has  been  true,  doubtless,  of  each  of  the 
roads  that  are  parties  to  these  bills.  Promoters  and  proprietors  of 
roads  have  looked  to  the  future,  as  they  had  a  right  to  do,  and  as  they 
were  induced  to  do  b}-  the  solicitations  of  the  various  communities 
through  which  they  run,  and  by  various  encouragements  offered  by  the 
State.  The  commission,  in  estimating  the  value  of  these  roads,  sa}' 
that  they  included  interest  on  the  money  invested  during  the  period  of 
construction.  This  is  somewhat  vague,  but  the  "  period  of  construc- 
tion "  mentioned  is  probabl}'  limited  to  the  time  when  each  section  of 
the  road  was  opened  to  the  public  for  business.  And  even  if  extended 
to  the  time  when  the  road  was  completed  to  Denison  and  to  Austin  in 
1873,  nearly  twenty  years  after  its  construction  was  begun  at  Houston, 
it  would  not  cover  all  of  the  time,  and  possibly  not  nearly  all  of  the  time, 
in  which  the  railroad  company  and  its  predecessors  have  lost  interest  on 
the  investment.  The  estimate  made  on  behalf  of  the  railroad  in  this 
case  of  the  cost  to  that  company  and  to  its  predecessor  company'  of  the 
railroad  propert}',  and  the  business  of  that  compan}'  as  it  exists  to-da}', 
ma}'  not  be  exactl}'  accurate, —  clearly  is  not  exactl}'  accurate;  but  it 
seems  to  me  that  it  is  not  beyond  the  fair  value  of  the  property,  as  it 
is  shown  to  have  been  built  up  and  constituted,  and  to  exist  to-da}' 
as  a  going  business  concern,  and  that  such  rates  of  fare  for  the  carriage 
of  persons  and  property  as  are  reasonable,  considered  with  reference 
to  the  cost  of  the  carriage  and  the  value  of  the  carriage  to  the  one  for 
whom  the  service  is  rendered,  cannot  be  reduced  by  the  force  of  State 
law  to  such  a  scale  as  would  appropriate  the  value  of  this  propert}-  in 
any  measure  to  the  use  of  the  public  without  just  compensation  to  the 
owners  thereof,  and  would  deprive  the  owners  thereof  of  the  equal 
protection  of  the  law  guaranteed  b^'  the  Constitution  of  the  United 
States,  as  cited. 

It  seems  to  be  contended  that  the  case  of  the  Houston  and  Texas 
Central  Railroad  Company*  full}'  justifies  the  action  of  the  commission 
in  its  imposition  of  a  system  of  rates,  because,  as  it  urged,  it  has  made 
earnings  over  and  above  operating  expenses  sufficient  to  pay  the 
interest  on  its  outstanding  bonds,  and  has  a  small  surplus  of  a  few 
thousand  dollars  in  excess,  as  shown  b}-  its  return  to  the  commission 
of  the  operations  of  the  year  ending  the  30th  of  June,  1898  ;  in  other 
words,  it  has  paid  interest  on  $34,000  of  bonds  to  the  mile.  The 
return  referred  to  is  made  on  forms  submitted  by  the  commission,  and 
under  the  item  of  "operating  expenses"  only  ordinary  repairs  and 
replacements  are  allowed.  In  case  an  insufficient  wooden  bridge  is  re- 
placed by  an  adequate  iron  bridge,  that  is  treated  as  a  betterment,  and 
not  permitted  to  figure  in  the  returns  as  a  part  of  the  operating 
expenses.  The  bill  and  cross  bill  show  that,  if  such  betterments, 
which  can  onl}'  be  made  or  procured  out  of  the  earnings  of  the  road, 
were  allowed  iu  the  return  of  operating  expenses,  the  revenue  earned 


SMYTH    V.   AMES.  347 

and  rendered  as  net  revenue  would  not  have  been  equal,  b}-  several 
hundred  thousand  dollars,  to  the  interest  on  the  bonded  indebtedness  ; 
that  the  l)onded  indebtedness  outstanding  against  this  road  being  in 
excess  of  the  value  fixed  by  the  commission,  to  the  extent  of  more 
than  50  per  cent,  the  company  has  no  means  of  providing  for  such 
betterments,  if  not  at  all  allowed  to  charge  tliem  at  any  time  against 
the  gross  earnings  of  the  road.  More  than  this,  it  is  shown  that  the 
road  has  never  at  any  time  paid  any  dividend  upon  its  stock.  On  the 
whole  case,  as  made  in  the  case  of  the  Houston  and  Texas  Central 
Railroad  Company,  it  seems  clear  to  me  that  the  system  of  rates 
adopted  and  enforced  by  the  commission  does  not  afford  to  the  owners 
of  this  property  the  equal  protection  of  the  law,  and  takes  from  the 
owners  and  stockholders  the  property  they  have  therein,  without  just 
compensation,  and  that,  therefore,  the  rates  must  be  held  to  be  un- 
reasonably low,  unjust,  and  confiscatory,  and  should  not  be  submitted 
to,  and  cannot  be  suffered  to  be  enforced.  As  already  said,  the  case 
made  for  relief  in  each  of  the  other  suits  seems  to  be  stronger  than  the 
case  of  the  Houston  and  Texas  Central  Railroad  Company  ;  and  the 
evidence  appears  to  me  to  sliow  clearly  that  the  system  of  rates  im- 
j)osed  is,  as  to  each  of  the  roads,  unreasonably  low,  unjust,  and 
confiscator}'.  Therefore  the  prayer  of  the  bill  in  each  case  is  granted, 
to  the  extent  of  enjoining  the  roads  from  adopting  the  rates  heretofore 
promulgated  by  the  commission,  and  enjoining  the  commission  and  the 
attorney-general  from  enforcing  the  same,  and  enjoining  all  persons 
claiming  thereunder  from  prosecuting  the  railroads,  or  any  of  the  offi- 
cers thereof,  for  the  non-observance  of  the  system  of  rates  heretofore 
promulgated  by  the  commission. 


SMYTH  V.  AMES. 
Supreme  Court  of  the  United  States,  1898. 

[169   U.  S.  466,1] 

Each  of  these  suits  was  brought  July  28,  1893,  and  involves  the  con- 
stitutionality of  an  Act  of  the  Legislature  of  Kebraska,  approved  by  the 
Governor  April  12,  1893,  and  which  took  effect  August  1,  1893.  It 
•was  an  Act  "to  regulate  railroads,  to  classifv  freights,  to  fix  reason- 
able maximum  rates  to  be  charged  for  the  transportation  of  freights 
upon  each  of  the  railroads  in  the  State  of  Nebraska  and  to  provide  pen- 
alties for  the  violation  of  this  Act."  Acts  of  Nebraska,  1893,  c.  24; 
Compiled  Statutes  of  Nebraska,  1893,  c.  72,  Art.  12.  The  act  is  re- 
ferred to  in  the  record  as  House  Roll  33. 

1  This  case  is  abridged.  —  Ed. 


348'  SMYTH   V.   AMES. 

These  cases  were  heard  at  the  same  time,  and  in  the  one  in  which 
the  Union  Pacific  Company,  tliu  fSt.  Joseph  Company,  the  Omaha 
Compan}-,  and  the  Kansas  City  Company  were  defendants,  it  was 
adjudged  in  the  Circuit  Court  —  Mr.  Justice  Buewku  presiding  — 
as  follows:  "That  the  said  railroad  companies  and  each  and  every 
of  them,  and  said  receivers,  be  perpetually  enjoined  and  restrained 
from  making  or  publishing  a  schedule  of  rates  to  be  charged  by  them 
or  any  or  either  of  them  for  the  transportation  of  freight  on  and  over 
their  respective  roads  in  this  State  from  one  point  to  another  therein, 
whereby  such  rate  shall  be  reduced  to  those  presci'ibed  by  the  Act  of 
the  Legislature  of  this  State,  called  in  the  bill  filed  therein,  '  House 
Roll  83,'  and  entitled  '  An  Act  to  regulate  railroads,  to  classify  freights, 
to  fix  reasonable  maximum  rates  to  be  charged  for  the  transportation 
of  freight  upon  each  of  the  railroads  in  the  State  of  Nebraska,  and  to 
provide  penalties  for  the  violation  of  this  Act,'  approved  April  12, 
1893,  and  below  those  now  charged  by  said  companies  or  either  of 
them  or  their  receivers,  or  in  anywise  obeying,  observing,  or  conform- 
ing to  the  provisions,  commands,  injunctions,  and  prohibitions  of  said 
alleged  act ;  and  that  the  Board  of  Transportation  of  said  State  and 
the  members  and  secretaries  of  said  Board  be  in  like  manner  per- 
petuall}'  enjoined  and  restrained  from  entertaining,  hearing,  or  deter- 
mining any  com[)laint  to  it  against  said  railroad  companies  or  an}'  or 
either  of  them  or  their  receivers,  for  or  on  account  of  any  act  or  thing 
by  either  of  said  companies  or  their  receivers,  their  ofiicers,  agents, 
servants,  or  employees,  done,  suffered,  or  omitted,  which  ma}'  be  forbid- 
den or  commanded  by  said  alleged  act,  and  from  instituting  or  prose- 
cuting or  causing  to  be  instituted  or  prosecuted  any  action  or  proceeding, 
civil  or  criminal,  against  either  of  said  companies  or  their  receivers  for 
any  act  or  thing  done,  suffered,  or  omitted,  which  may  be  forbidden  or 
commanded  by  said  act,  and  particularly  from  reducing  its  present 
rates  of  charges  for  transportation  of  freight  to  those  prescribed  in 
said  act,  and  that  the  attorney-general  of  this  State  be  in  like  man- 
ner enjoined  from  bringing,  aiding  in  bringing,  or  causing  to  be  brought, 
an}'  proceeding  by  way  of  injunction,  ■mandamus,  civil  action,  or  in- 
dictment against  said  companies  or  either  of  them  or  their  receivers 
for  or  on  account  of  any  action  or  omission  on  their  part  commanded 
or  forl)idden  by  the  said  act.  And  that  a  writ  of  injunction  issue  out 
of  this  court  and  under  the  seal  thereof,  directed  to  the  said  defend- 
ants, commanding,  enjoining,  and  restraining  tliem  as  hereinbefore  set 
forth,  which  injunction  shall  be  perpetual  save  as  is  hereinafter  pro- 
vided. And  it  is  furtlier  declared,  adjudged,  and  decreed  that  the  act 
above  entitled  is  repugnant  to  the  Constitution  of  the  United  States, 
forasmuch  as  by  the  provisions  of  said  act  the  said  defendant  railroad 
companies  ma}'  not  exact  for  tlie  transportation  of  freight  from  one 
point  to  another  within  this  State,  charges  which  yield  to  the  said 
companies,  or  either  of  them,  reasonable  com[)ensation  for  such  ser- 
vices.    It  is  further  ordered,  adjudged,  and  decreed  that  the  defend- 


SMYTH    V.    AMES.  349 

ants,  members  of  the  Board  of  Transportation  of  said  State,  may 
hereafter  when  the  circumstances  have  changed  so  that  the  rates  fixed 
in  the  said  act  shall  yield  to  tlie  said  companies  reasonable  compen- 
sation for  the  services  aforesaid,  apph-  to  this  court  by  supplemental 
bill  or  otherwise,  as  they  may  be  advised,  for  a  further  order  in  that 
behalf  It  is  further  ordered,  adjudged,  and  decreed  that  the  plaintiffs 
recover  of  the  said  defendants  their  costs  to  be  taxed  by  the  clerk." 

The  above  decree  was  in  accordance  with  the  prayer  for  relief.  A 
similar  decree  was  rendered  in  each  of  the  other  cases. 

The  present  appeals  were  prosecuted  by  the  defendants  constituting 
the  State  Board  of  Transportation,  as  well  as  by  the  defendants  who 
are  Secretaries  of  that  Board. 

Mr.  Justice  Haklan.  ...  It  is  said  by  the  appellants  that  the  local 
rates  established  by  the  Nebraska  statute  are  much  higher  than  in  the 
State  of  Iowa,  and  that  fact  shows  that  the  Nebraska  rates  are  rea- 
sonable. This  contention  was  thus  met  b}'  the  Circuit  Court :  "  It 
is,  however,  urged  bj-  the  defendants  that,  in  the  general  tariffs  of 
these  companies,  there  is  an  inequalit}' ;  that  the  rates  in  Nebraska 
are  higher  than  those  in  adjoining  States,  and  that  the  reduction  by 
House  Roll  33  simply  establishes  an  equality  between  Nebraska  and 
the  other  States  through  which  the  roads  run.  The  question  is  asked, 
Are  not  the  people  of  Nebraska  entitled  to  as  cheap  rates  as  the  peo- 
ple of  Iowa?  Of  course,  relatively  they  are.  That  is,  the  roads  mag- 
net discriminate  against  the  people  of  any  one  State,  but  they  are  not 
necessarily  bound  to  give  absolutely  the  same  rates  to  the  people  of 
all  the  States ;  for  the  kind  and  amount  of  business  and  the  cost 
thereof  are  factors  which  determine  largely  the  question  of  rates,  and 
these  vary  in  the  several  States.  The  volume  of  business  in  one  State 
may  be  greater  per  mile,  while  the  cost  of  construction  and  of  main- 
tenance is  less.  Hence,  to  enforce  the  same  rates  in  both  States  might 
result  in  one  in  great  injustice,  while  in  the  other  it  would  only  be  rea- 
sonable and  fair.  Comparisons,  therefore,  between  the  rates  of  two 
States  are  of  little  value,  unless  all  the  elements  that  enter  into  the 
problem  are  presented.  It  may  l)e  true,  as  testified  by  some  of  the 
witnesses,  that  the  existing  local  rates  in  Nebraska  are  forty  per  cent 
higher  than  similar  rates  in  the  State  of  Iowa.  But  it  is  also  true 
that  the  mileage  earnings  in  Iowa  are  greater  that  in  Nebraska.  In 
Iowa  there  are  230  people  to  each  mile  of  railroad,  while  in  Nebraska 
there  are  but  190;  and,  as  a  general  rule,  the  more  people  there  are 
the  more  business  there  is.  Hence,  a  mere  difference  between  the 
rates  in  two  States  is  of  comparatively  little  significance."  64  Fed. 
Rep.  165.  In  these  views  we  concur,  and  it  is  unnecessary  to  add  any- 
thing to  what  was  said  by  the  Circuit  Court  on  this  point. 

It  is  further  said,  in  behalf  of  the  appellants,  that  the  reasonableness 
of  the  rates  established  by  the  Nebraska  statute  is  not  to  be  deter- 
mined by  the  inquiry  whether  such  rates  would  leave  a  reasonable  net 
profit  from   the  local  business   affected  thereby,    but  that   the   court 


350  SMYTH   V.    AMES. 

should  take  into  consideration,  among  other  things,  the  whole  business 
of  the  company,  that  is,  all  its  business,  passenger  and  freight,  inter- 
state and  domestic.  If  it  be  found  upon  investigation  tliat  the  profits 
derived  b^'  a  railroad  companv  from  its  interstate  business  alone  are 
sufficient  to  cover  operating  expenses  on  its  entire  line,  and  also  to 
meet  interest,  and  justify  a  liberal  dividend  upon  its  stock,  ma}'  the 
Legislature  prescribe  rates  for  domestic  business  that  would  bring  no 
reward  and  be  less  than  the  services  rendered  are  reasonably  worth? 
Or,  must  the  rates  for  such  transportation  as  begins  and  ends  in  the 
State  be  established  with  reference  solely  to  the  amount  of  business 
done  by  the  carrier  wholly  within  such  State,  to  the  cost  of  doing  such 
local  business,  and  to  the  fair  value  of  the  propertj"  used  in  conducting 
it,  without  taking  into  consideration  the  amount  and  cost  of  its  in- 
terstate business,  and  the  value  of  the  property-  employed  in  it?  Tf 
we  do  not  misapprehend  counsel,  their  ai'gument  leads  to  the  conclu- 
sion that  the  State  of  Nebraska  could  legally  require  local  freight 
business  to  be  conducted  even  at  an  actual  loss,  if  tlie  company  earned 
on  its  interstate  business  enough  to  give  it  just  compensation  in  re- 
spect of  its  entire  line  and  all  its  business,  interstate  and  domestic. 
We  cannot  concur  in  this  view.  In  our  judgment,  it  must  be  held  that 
the  reasonableness  or  unreasonableness  of  rates  prescribed  by  a  State 
for  the  transportation  of  persons  and  property'  wholl}'  within  its  limits 
must  be  determined  without  reference  to  the  interstate  business  done 
bv  the  carrier,  or  to  the  profits  derived  from  it.  The  State  cannot 
justify  unreasonably  low  rates  for  domestic  transportation,  considered 
alone,  upon  the  ground  that  the  carrier  is  earning  large  profits  on  its 
interstate  business,  over  which,  so  far  as  rates  are  concerned,  the  State 
has  no  control.  Nor  can  the  carrier  justify'  unreasonably  high  rates 
on  domestic  business  upon  the  ground  that  it  will  be  able  only  in 
that  wa\'  to  meet  losses  on  its  interstate  business.  So  far  as  rates  of 
transportation  are  concerned,  domestic  business  should  not  be  made 
to  bear  the  losses  on  interstate  business,  nor  the  latter  the  losses  on 
domestic  business.  It  is  only  rates  for  the  transportation  of  persons 
and  property  between  points  within  the  State  that  the  State  can  pre- 
scribe ;  and  when  it  undertakes  to  prescribe  rates  not  to  be  exceeded 
b}'  the  carrier,  it  must  do  so  with  reference  exclusively  to  what  is  just 
and  reasonable,  as  between  the  carrier  and  the  public,  in  respect  of 
domestic  business.  The  argument  tliat  a  railroad  line  is  an  entirety  ; 
that  its  income  goes  into,  and  its  expenses  are  provided  for,  out  of  a 
common  fund;  and  that  its  capitalization  is  on  its  entire  line,  within 
and  without  the  State,  can  have  no  application  where  the  State  is  with- 
out authority  over  rates  on  the  entire  line,  and  can  only  deal  with  local 
rates  and  make  such  regulations  as  are  necessary  to  give  just  compen- 
sation on  local  business.   .   .  . 

In  our  opinion,  the  broad  proposition  advanced  b}-  counsel  involves 
misconception  of  the  relations  between  the  public  and  a  railroad  cor- 
poration.   It  is  unsound  in  that  it  practically  excludes  from  consideration 


SMYTH   V.    AMES.  351 

the  fair  value  of  the  property  used,  omits  altogether  any  consideration 
of  the  right  of  the  public  to  be  exempt  from  unreasonable  exactions, 
and  makes  the  interests  of  the  corporation  maintaining  a  public  high- 
way the  sole  test  in  determining  wliether  the  rates  established  by  or 
for  it  are  such  as  may  be  rightfully  prescribed  as  between  it  and  the 
public.  A  railroad  is  a  public  highway,  and  none  Ihe  less  so  because 
constructed  and  maintained  through  the  agency  of  a  corporation  de- 
riving its  existence  and  powers  from  the  State.  Such  a  corporation 
was  created  for  public  purposes.  It  performs  a  function  of  the  State. 
Its  authorit}'  to  exercise  the  right  of  eminent  domain  and  to  charge 
tolls  was  given  primarily  for  the  benefit  of  the  public.  It  is  under 
governmental  control,  though  such  control  must  be  exercised  with  due 
regard  to  the  constitutional  guarantees  for  the  protection  of  its  property. 
Olcott  V.  The  Supervisors,  16  Wall.  678,  694  ;  Sinking  Fund  Cases,  99 
U.  S.  700,  719  ;  Cherokee  Nation  v.  Southern  Kansas  Railway,  135 
U.  S.  641,  657.  It  cannot,  therefore,  be  admitted  that  a  railroad  cor- 
[)oration  maintaining  a  highway  under  the  authority  of  the  State  ma}' 
fix  its  rates  with  a  vievv  solely  to  its  own  interests,  and  ignore  the  rights 
of  the  public.  But  the  i-ights  of  the  public  would  be  ignored  if  rates 
for  the  transportation  of  persons  or  propertj'  on  a  railroad  are  exacted 
without  reference  to  the  fair  value  of  the  property-  used  for  the  public 
or  the  fair  value  of  the  services  rendered,  but  in  order  simpl}-  that  the 
corporation  may  meet  operating  expenses,  paj'  the  interest  on  its  obliga- 
tions, and  declare  a  dividend  to  stockholders. 

If  a  railroad  coi'poration  lias  bonded  its  property  for  an  amount 
that  exceeds  its  fair  value,  or  if  its  capitalization  is  largeh*  fictitious, 
it  may  not  impose  upon  the  public  the  burden  of  such  increased  rates 
as  ma}'  be  required  for  the  purpose  of  realizing  profits  upon  such  ex- 
cessive valuation  or  fictitious  capitalization  ;  and  the  apparent  value 
of  the  property  and  franchises  used  by  the  corporation,  as  represented 
by  its  stocks,  bonds,  and  obligations,  is  not  alone  to  be  considered  when 
determining  the  rates  tliat  may  be  reasonably  charged.  What  was  said 
in  Covington  &  Lexington  Turnpike  Road  Co.  v.  Sandford,  164  U.  S. 
578,  596,  597,  is  pertinent  to  the  question  under  consideration.  It  was 
there  observed:  ''It  cannot  be  said  that  a  corporation  is  entitled,  as 
of  right,  and  without  reference  to  the  interests  of  the  public,  to  realize 
a  given  per  cent  upon  its  capital  stock.  When  the  question  arises 
whether  the  Legislature  has  exceeded  its  constitutional  power  in  pre- 
scribing rates  to  be  charged  by  a  corporation  controlling  a  public  high- 
way, stockholders  are  not  the  only  persons  whose  rights  or  interests 
are  to  be  considered.  The  rights  of  the  public  are  not  to  be  ignored. 
It  is  alleged  here  that  the  rates  prescril>ed  are  unreasonable  and  un- 
just to  the  company  and  its  stocklioklers.  But  that  involves  an  in- 
quiry as  to  what  is  reasonable  and  just  for  the  pul)lic.  .  .  .  The  public 
cannot  properlv  l)e  subjected  to  unreasonable  rates  in  order  simply  that 
stockholders  may  earn  dividends.  The  Legislature  has  the  authorit}-, 
in  every  case,   where  its  power  has  not  been  restrained  by  contract, 


352  SMYTH   V.   AMES. 

to  proceed  upon  the  ground  that  the  public  may  not  rightfully  be  re- 
quired to  submit  to  unreasonable  exactions  for  the  use  of  a  public 
highway  established  and  maintained  under  legislative  autliority.  If  a 
corporation  cannot  maintain  such  a  higliway  and  earn  dividends  for 
stockholders,  it  is  a  misfortune  for  it  and  them  which  the  Constitution 
does  not  require  to  be  remedied  by  imposing  unjust  burdens  upon  the 
public.  So  that  the  right  of  the  public  to  use  the  defendant's  turnpike 
upon  payment  of  such  tolls  as  in  view  of  the  nature  and  value  of  the 
services  rendered  by  the  company  are  reasonable,  is  an  element  in  the 
general  inquiry  whether  the  rates  established  by  law  are  unjust  and  un- 
reasonable." 

A  corporation  maintaining  a  public  highway,  although  it  owns  the 
property  it  employs  for  accomplishing  public  objects,  must  be  held  to 
have  accepted  its  rights,  privileges,  and  franchises  subject  to  the  con- 
dition that  the  government  creating  it,  or  the  government  within  whose 
limits  it  conducts  its  business,  ma}'  by  legislation  protect  the  people 
against  unreasonable  charges  for  the  services  rendered  b}-  it.  It  can- 
not be  assumed  that  an}'  railroad  corporation,  accepting  franchises, 
rights,  and  privileges  at  the  hands  of  the  public,  ever  supposed  that  it 
acquired,  or  that  it  was  intended  to  grant  to  it,  the  power  to  construct 
and  maintain  a  public  highway'  simply  for  its  benefit,  without  regard  to 
the  riglits  of  the  public.  But  it  is  equally  true  that  the  corporation 
performing  such  public  services  and  the  people  financially  interested 
in  its  business  and  affairs  have  riglits  that  may  not  be  invaded  by 
legislative  enactment  in  disregard  of  the  fundamental  guarantees  for 
the  protection  of  propert}'.  The  corporation  may  not  be  required  to 
use  its  property  for  the  benefit  of  the  public  without  receiving  just  com- 
pensation for  the  services  rendered  b}'  it.  How  such  compensation 
may  be  ascertained,  and  what  are  the  necessary  elements  in  such  an 
inquiry,  will  always  be  an  embarrassing  question.  As  said  in  the  case 
last  cited  :  "Each  case  must  depend  upon  its  special  facts  ;  and  when 
a  court,  without  assuming  itself  to  prescribe  rates,  is  required  to  de- 
termine whether  the  rates  prescribed  by  the  Legislature  for  a  corpora- 
tion controlling  a  public  highway  are,  as  an  entirety,  so  unjust  as  to 
destroy  the  value  of  its  property  for  all  the  purposes  for  which  it  was 
acquired,  its  dut}'  is  to  take  into  consideration  the  interests  both  of  the 
public  and  of  the  owner  of  the  property,  together  with  all  other  circum- 
stances that  are  fairly  to  be  considered  in  determining  whether  the 
Legislature  has,  under  the  guise  of  regulating  rates,  exceeded  its  con- 
stitutional authority,  and  i)ractically  deprived  the  owner  of  pro[)ert3' 
■without  due  process  of  law.  .  .  .  The  utmost  that  any  cori)oration 
operating  a  public  highway  can  rightfully  demand  at  the  hands  of  the 
Legislature,  when  exerting  its  general  powers,  is  that  it  receive  what, 
under  all  the  circumstances,  is  such  compensation  for  the  use  of  its  prop- 
erty' as  will  be  just  both  to  it  and  to  tlie  i)ublic." 

We  hold,  however,  that  the  ])asis  of  all  calculations  as  to  the  reason- 
ableness of  rates  to  be  charged  by  a  corporation  maintaining  a  highway 


SMYTH   V.   AMES.  353 

under  legislative  sanction  must  be  the  fair  value  of  the  property  being 
used  by  it  for  the  convenience  of  the  public.  And  in  order  to  ascertain 
that  value,  the  original  cost  of  construction,  the  amount  expended  in 
permanent  improvements,  tlie  amount  and  market  value  of  its  bonds 
and  stock,  the  present  as  compared  witli  the  original  cost  of  construc- 
tion, the  probable  earning  capacity-  of  the  property  under  particular 
rates  prescribed  by  statute,  and  the  sum  required  to  meet  operating  ex- 
penses, are  all  matters  for  consideration,  and  are  to  be  given  sucli 
weight  as  ma}'  be  just  and  right  in  each  case.  We  do  not  say  tliat  there 
may  not  be  other  matters  to  be  regarded  in  estimating  the  value  of  tlie 
propert}-.  Wliat  the  company  is  entitled  to  ask  is  a  fair  return  upon 
the  value  of  that  which  it  employs  for  the  public  convenience.  On  the 
other  hand,  what  the  public  is  entitled  to  demand  is  that  no  more  be 
exacted  from  it  for  the  use  of  a  public  highway  than  the  services  ren- 
dered by  it  are  reasonably  worth.  But  even  upon  this  basis,  and  deter- 
mining the  probable  effect  of  the  act  of  1893  by  ascertaining  what  could 
have  been  its  effect  if  it  had  been  in  operation  during  the  three  years 
immediately  preceding  its  passage,  we  perceive  no  ground  on  the  record 
for  reversing  the  decree  of  the  Circuit  Court.  On  the  contrary,  we  are 
of  opinion  that  as  to  most  of  the  companies  in  question  there  would 
have  been,  under  such  rates  as  were  established  b}-  the  act  of  1893,  an 
actual  loss  in  each  of  the  years  ending  June  30,  1891,  1892,  and  1893  ; 
and  that,  in  the  exceptional  cases  above  stated,  when  two  of  the  com- 
panies would  have  earned  something  above  operating  expenses,  in 
particular  years,  the  receipts  or  gains,  above  operating  expenses,  would 
have  been  too  small  to  affect  the  general  conclusion  that  the  act,  if  en- 
forced, would  have  deprived  each  of  the  railroad  companies  involved 
in  these  suits  of  the  just  compensation  secured  to  them  b}'  the  Con- 
stitution. Under  the  evidence  there  is  no  ground  for  saying  that 
the  operating  expenses  of  any  of  the  companies  were  greater  than 
necessary. 

Perceiving  no  error  on  the  record  in  the  light  of  the  facts  presented 
to  the  Circuit  Court, 

The  decree  in  each  case  must  be  affirmed} 

1  Compare:  Water  Works  v.  Schottler,  110  U.  S. 347  ;  Railroad  Commission  Cases, 
116  U.  S.  307  ;  R.  R.  v.  Illinois,  118  U.  S.  557  ;  R.  R.  v.  Minn.,  134  U.  S.  418  ;  Reagan 
V.  Trust  Co.,  154  U.  S.  362 ;  R.  R.  v.  Gill,  156  U.  S.  649 ;  Turnpike  v.  Saudford,  164 
U.  S.  578 ;  Land  Co.  v.  City,  174  U.  S.  739.  —  Ed. 


23 


354  FITCHBURG  EAILROAD  V.   GAGE. 


Section  IV.    Without  Discrimination. 

ANONYMOUS. 
Common  Pleas,  1558. 

[Moore,  78,  pi.  207.] 

One  came  to  an  inn,  and  the  innkeeper  said  to  hira,  "  Here  are  per- 
sons resorting  to  this  house,  and  I  know  nothing  about  their  behavior ; 
therefore  take  the  key  of  such  a  chamber  and  put  j'our  goods  there 
at  your  own  rislc ,  for  I  will  take  no  responsibility  for  them ;  "  and  after- 
wards the  goods  were  stolen.  The  party  brought  action  on  the  case 
against  the  innkeeper. 

Wray.  The  innkeeper  is  responsible  by  the  law  for  all  the  goods 
which  come  to  his  inn ;  and  by  the  law  he  cannot  discharge  himself  by 
such  words. 

Harjjer.     We  will  demur. 

Browne,  J.     Then  we  will  quicklj'  make  an  end  of  it. 

Ilarjyer.  My  client  has  instructed  me  iu  this  way,  and  I  have  no 
more  to  say. 

Browne,  J.  You  have  the  moreto'pay;  the  innkeeper  may  take 
issue,  that  the  goods  were  not  stolen  by  his  negligence. 


FITCHBURG  RAILROAD  v.  GAGE. 
Supreme  Judicial  Court  op  Massachusetts,  1859. 

[12  Gray,  393.] 

Action  of  contract  upon  an  account  annexed  against  Gage,  Hit- 
tinger  &  Compan}'  for  the  transportation  of  ice  from  Fresh  and  Spy 
Ponds  to  Charlestown,  over  that  portion  of  the  plaintiff's  railroad  which 
was  formerly  the  Charlestown  Branc^h  Railroad,  and  from  Groton  to 
Charlestown  over  that  portion  which  has  always  been  known  as  the 
Fitchburg  Railroad.     The  case  was  referred  to  an  auditor,  to  whose 


FITCHBURG   RAILROAD    V.    GAGE.  355 

report  the  defendants  took  exceptions  presenting  pure  questions  of  law, 
and  was  thereupon  reserved  by  Bigelov:,  J.,  for  tlie  consideration  of  the 
whole  court,  and  is  stated  in  the  opinion. 

S.  Bartlett  &  D.  Thaxter^  for  the  defendants. 

R.  Choate  <&  H,  C.  Hatchins^  for  the  plaintiffs. 

Merrick,  J.  This  action  is  brouglit  to  recover  the  balance  of  the 
account  annexed  to  the  writ.  The  defendants  admit  the  transportation 
for  them  of  all  the  ice  charged  to  them  in  tlie  account,  and  that  the  sev- 
eral items  contained  in  it  relative  to  the  service  performed  for  them  are 
correct.  But  the}'  insist  that  the  rate  of  compensation  claimed  is  too 
large,  and  that  the  charges  ought  to  be  reduced.  They  have  also  filed 
an  account  in  set-off,  claiming  to  recover  back  the  amount  of  an  alleged 
overpayment  made  by  them  for  similar  services  in  the  transportation  of 
other  quantities  of  ice  belonging  to  them. 

Their  claim  to  be  entitled  to  a  diminution  in  the  amount  of  charges 
in  the  plaintiffs'  account,  and  to  a  recover}'  of  the  sum  stated  in  their 
account  in  set-off,  both  rest  upon  the  same  ground.  They  contended 
and  offered  to  prove  at  the  hearing  before  the  auditor,  that  while  the 
plaintiffs  were  transporting  the  ice  the}'  were  at  the  same  time  hauling 
over  the  same  portion  of  tlieir  road  various  quantities  of  bricks  for  other 
parties  ;  that  ice  and  bricks  were  of  the  same  class  of  freight,  and  that 
ice  was  as  low  a  class  of  freight  as  bricks  in  regard,  to  the  risk  and 
hazard  of  transportation  ;  and  that  while  they  charged  the  defendants 
fifty  cents  per  ton  for  the  transportation  of  ice,  they  charged  other  par- 
ties only  twenty  cents  per  ton  for  a  like  service  in  reference  to  bricks. 

Tlie  defendants  contended  that  they  were  entitled  to  maintain  their 
claim  upon  two  grounds  :  first,  under  the  provisions  in  the  plaintiffs' 
act  of  incorporation  ;  and,  secondly,  upon  the  general  principle  that  as 
common  carriers  they  were  bound  and  required  to  transport  every  species 
of  freight  of  the  same  class  for  any  anrl  all  parties  at  the  same  rate  of 
compensation  ;  and  that  they  had  therefore  no  right  to  charge  any  greater 
sum  for  the  transportation  of  ice  than  that  for  which  they  had  actually 
carried  bricks  for  other  parties.  Neither  of  the  claims  was  sustained  by 
the  auditor,  and  he  accordingly  rejected  the  evidence  offered  in  support 
of  them.     In  botli  particulars  we  think  his  ruling  was  correct.^ 

It  is  contended  on  behalf  of  the  defendants  that  the  plaintiffs  were 
common  carriers  ;  and  that  by  the  principles  of  the  common  law  they 
are  in  that  relation  required  to  carry  merchandise  and  other  goods  or 
chattels  of  the  same  class  at  equal  rates  for  the  public  and  for  each  in- 
dividual on  whose  account  service  in  this  line  of  business  is  performed. 
There  is  no  doubt  they  are  common  carriers.  That  is  fully  established. 
Thomas  v.  Boston  «&  Providence  Railroad.  10  Met.  472.  Norway 
Plains  Co.  v.  Boston  «&  Maine  Railroad,  1  Gray,  263.  But  by  the  law 
of  this  Commonwealth  every  railroad  corporation  is  authorized  to  estab- 
lish for  their  sole  benefit  a  toll  upon  all  passengers  and  property 
conveyed  or  transported  on  their  railroad,  at  such  rates  as  may  be  de- 
'  The  decision  upon  the  first  ground  is  omitted.  —  Ed. 


356  riTCHBURG   KAILROAD   V.    GAGE. 

terrained  l\v  the  directors.  Rev.  Sts.  c.  39,  §  83.  This  right  however 
is  ver}-  fully,  and  reasonably,  suVyected  to  legislative  supervision  and 
control ;  a  provision  which  may  be  believed  to  be  sufficient  to  guard 
this  large  conceded  power  against  all  injustice  or  abuse.  And  in  view 
of  this  large  and  unqualified,  and  therefore  adequate  supervision,  the 
right  of  railroad  corporations  to  exact  compensation  for  services  ren- 
dered ma\'  be  considered  as  conforming  substantially  to  the  rule  of  the 
common  law  upon  the  same  subject.  This  rule  is  clearly  stated  b}^ 
Lawrence,  J.,  in  the  case  of  Harris  v.  Packwood,  3  Taunt.  272:  "I 
would  not,  however,  have  it  understood  that  carriers  are  at  libert}-  by 
law  to  charge  whatever  the\'  please  ;  a  carrier  is  liable  b}-  law  to  carry 
everything  which  is  brought  to  him,  for  a  reasonable  sum  to  be  paid  to 
him  for  the  same  carriage  ;  and  not  to  extort  what  he  will."  This  is 
the  doctrine  of  the  common  law.  2  Kent  Com.  (6th  ed.)  599.  Angell 
on  Carriers,  §  124.  And  it  supplies  substantially  the  same  rule  which 
is  recognized  and  established  in  this  Commonwealth  by  the  provisions  of 
St.  1845,  c.  191.  The  recent  English  cases,  cited  b}'  the  counsel  for 
the  defendants,  are  chiefly  commentaries  upon  the  special  legislation  of 
Parliament  regulating  the  transportation  of  freight  on  railroads  con- 
structed under  the  authority  of  the  government  there  ;  and  consequently 
throw  very  little  light  upon  questions  concerning  the  general  rights  and 
duties  of  common  carriers,  and  are  for  that  reason  not  to  be  regarded 
as  authoritative  expositions  of  the  common  law  upon  those  subjects. 
The  principle  derived  from  that  source  is  very  plain  and  simple.  It 
requires  equal  justice  to  all.  But  the  equality  which  is  to  be  observed 
in  relation  to  the  public  and  to  ever\'  individual  consists  in  the  re- 
stricted right  to  charge,  in  each  particular  case  of  service,  a  reasonable 
compensation,  and  no  more.  If  the  carrier  confines  himself  to  this,  no 
wrong  can  be  done,  and  no  cause  afforded  for  complaint.  If,  for  special 
reasons,  in  isolated  cases,  the  carrier  sees  fit  to  stipulate  for  the  car- 
riage of  goods  or  merchandise  of  an}'  class  for  individuals  for  a  certain 
time  or  in  certain  quantities  for  less  compensation  tlian  what  is  the 
usual,  necessar}',  and  reasonable  rate,  he  may  undoubtedly  do  so  with- 
out thereby  entitling  all  other  persons  and  parties  to  the  same  advantage 
and  relief.  It  could  of  course  make  no  difl'erence  whether  such  a  con- 
cession was  in  relation  to  articles  of  the  same  kind  or  belonging  to  tlie 
same  general  class  as  to  risk  and  cost  of  transportation.  The  defend- 
ants do  not  deny  that  the  charge  made  on  them  for  the  transportation 
of  their  ice  was  according  to  the  rates  established  b}'  the  directors  of 
the  compan}-,  or  assert  that  the  compeusation  claimed  is  in  any  degree 
excessive  or  unreasonable.  Certainly  then  the  charges  of  the  plaintiffs 
should  be  considered  legal  as  well  as  just ;  nor  can  the  defendants  have 
any  real  or  equitable  right  to  insist  upon  any  abatement  or  deduction, 
because  for  special  reasons,  which  are  not  known  and  cannot  therefore 
be  appreciated,  allowances  may  have  been  conceded  in  particular  in- 
stances, or  in  reference  to  a  [)articular  series  of  services,  to  other 
parties. 


MESSENGER    V.    PENNSYLVANIA   RAILKOAD   CO.  357 

There  remains  another  question,  the  determination  of  whicli  depends 
upon  other  and  different  considerations.  The  auditor,  for  the  purpose 
of  presenting  tlie  question  to  tlie  determination  of  the  court,  rejected 
evidence  oflered  by  the  defendants  tending  to  prove  that  prior  to  the 
22d  of  February',  1855,  and  down  to  that  time,  the  plaintiffs  had  trans- 
ported for  them  large  quantities  of  ice  from  Groton  at  a  much  less  rate 
of  compensation  than  the  amount  charged  in  their  account  under  date 
of  the  31st  January  of  that  year,  witliout  having  given  them  notice,  and 
without  their  knowledge,  of  any  intention  to  increase  the  charge  for 
such  service.  This  evidence  was  rejected,  for  the  reason  that  the  direc- 
tors of  the  plaintiff  corporation  had,  prior  to  the  transportation  of  the 
ice  in  the  last  named  item,  fixed  and  raised  the  rate  of  transportation  of 
ice  on  their  road  from  Groton  to  ninety  cents  per  ton.  Tliis  evidence 
ought  to  have  been  received.  In  the  absence  of  any  special  contract  be- 
tween the  parties,  it  had  a  tendency  to  show  what  was  the  understand- 
ing between  the  parties  on  the  subject,  and  what  the  defendants  had  a 
right  to  consider  would  be  the  price  to  be  charged  to  them  for  services 
performed  in  their  behalf.  If  not  controlled,  it  would  and  ouglit  to 
have  had  a  material  effect  upon  determining  the  question  concerning 
the  compensation  which  the  plaintiffs  were  entitled  to  recover.  It  might 
have  been  controlled  either  bj-  showing  tliat  the  defendants  did  in  fact 
have  notice  of  the  new  rate  of  charge  established  b}'  the  directors  of  the 
company,  or  that  the  notice  was  communicated  generally  to  all  persons, 
in  the  usual  and  ordinary  manner,  and  with  such  degree  of  publicity  that 
all  persons  dealing  with  them  might  fairly  be  presumed  to  have  cog- 
nizance of  the  change. 

In  this  particular  therefore  the  exception  to  the  ruling  of  the  auditor 
must  be  sustained  ;  in  all  others,  the  exceptions  taken  to  his  decisions 
are  overruled. 

The  case  must  therefore  be  recommitted  to  the  auditor  for  the  pur- 
pose of  hearing  the  evidence  rejected,  and  any  other  proofs  which  the 
parties  may  respectivel}'  produce  relative  to  the  items  of  charge  under 
date  of  January  31st,  and  finding  the  amount  which  is  due  for  the  ser- 
vices there  stated ;   but  for  no  other  purpose  whatever. 

Exceptions  sustained. 


MESSENGER  v.   PENNSYLVANIA  RAILROAD   COMPANY. 

Supreme  Court  of  New  Jersey,  1873. 
Court  of  Errors  and  Appeals  of  New  Jkrsey,  1874. 

[7   Vroom  (36  N.  J.  L.),  407  ,  8  Vroom  (37  N.  J.  L.),  531.] 

Beasley,  C.  J.  The  Pennsylvania  Railroad  Compan}-,  who  are  the 
defendants  in  this  action,  agreed  with  the  plaintiffs  to  carr^-  certain 
merchandise  for  them,  between  certain  termini,  at  a  fixed  rate  less  than 
they  should  carry  between  the  same  points  for  any  other  person.  The 
allegation  is,  that  goods  have  been  carried  for  other  parties  at  a  certain 


358  MESSENGER   V.    PENNSYLVANIA   RAILROAD    CO. 

rate  below  what  the  goods  of  the  plaintiffs  have  been  carried,  and  this 
suit  is  to  enforce  the  foregoing  stipulation.  The  question  is,  whether 
the  agreement  thus  forming  the  foundation  of  the  suit  is  legal. 

There  can  be  no  doubt  that  an  agreement  of  tliis  kind  is  calculated  to 
give  an  important  advantage  to  one  dealer  over  other  dealers,  and  it  is 
equally  clear  that,  if  the  power  to  make  the  present  engagement  exists, 
man}-  branches  of  business  are  at  the  mercy  of  these  companies.  A 
merchant  who  can  transport  his  wares  to  market  at  a  less  cost  than  his 
rivals,  will  soon  acquire,  by  underselling  them,  a  practical  monopoly  of 
the  business  ;  and  it  is  obvious,  that  this  result  can  often  be  brouglit 
about  if  the  rule  is,  as  the  plaintiffs  contend  that  it  is,  that  these 
bargains  giving  preferences  can  be  made.  A  railroad  is  not,  in 
general,  subject  to  much  competition  in  the  business  between  its 
termini ;  the  difficulty  in  getting  a  charter,  and  the  immense  ex- 
pense in  building  and  equipping  a  road,  leaves  it,  in  the  main, 
without  a  rival  in  the  field  of  its  operation ;  and  the  consequence 
is,  the  trader  who  can  transmit  his  merchandise  over  it  on  terms  more 
favorable  tlian  others  can  obtain  is  in  a  fair  way  of  ruling  the  market. 
The  tendency  of  such  compacts  is  adverse  to  the  public  welfare,  which 
is  materially  dependent  on  commercial  competition  and  the  absence  of 
monopolies.  Consequentl}',  the  inquiry'  is  of  moment,  whetlier  such 
compacts  may  be  made.  I  have  examined  the  cases,  and  none  that  I 
have  seen  is,  in  all  respects,  in  point,  so  that  the  problem  is  to  be  solved 
b}-  a  recurrence  to  the  general  principles  of  the  law. 

The  defendants  are  common  carriers,  and  it  is  contended  that  bailees 
of  that  character  cannot  give  a  preference  in  the  exercise  of  their  call- 
ing to  one  dealer  over  another.  It  cannot  be  denied,  that  at  the  com- 
mon law,  ever}'  person,  under  identical  conditions,  had  an  equal  right  to 
the  services  of  their  commercial  agents.  It  was  one  of  the  primary 
obligations  of  the  common  carrier  to  receive  and  carrj'  all  goods  offered 
for  transportation,  upon  receiving  a  reasonable  hire.  If  he  refused  the 
offer  of  such  goods,  he  was  liable  to  an  action,  unless  he  could  show  a 
reasonable  ground  for  his  refusal.  Thus,  in  the  xevy  foundation  and 
substance  of  the  business,  there  was  inherent  a  rule  which  excluded  a 
preference  of  one  consignor  of  goods  over  another.  The  duty  to  receive 
and  carry  was  due  to  every  member  of  the  communit}',  and  in  an  equal 
measure  to  each.  Nothing  can  be  clearer  than  that,  under  the  preva- 
lence of  this  principle,  a  common  carrier  could  not  agree  to  carry  one 
man's  goods  in  preference  to  tliose  of  another. 

It  is  important  to  remark,  that  this  obligation  of  this  class  of  bailees 
is  alwa3's  said  to  arise  out  of  the  character  of  the  business.  Sir  William 
Jones,  importing  the  expression  from  the  older  reports,  declares  that 
this,  as  well  as  the  other  peculiar  responsibilities  of  the  common  carrier, 
is  founded  in  the  consideration  that  the  calling  is  a  public  employment. 
Indeed,  the  compulsion  to  serve  all  that  apply  could  be  justified  in  no 
other  way,  as  the  right  to  accept  or  reject  an  oflfer  of  business  is  neces- 
sarily incident  to  all  private  traffic. 


MESSENGER   V.   PENNSYLVANIA    RAILROAD    CO.  859 

Recognizing  this  as  the  settled  doctrine,  I  am  not  able  to  see  how  it 
can  be  admissible  for  a  common  carrier  to  demand  a  different  hire  from 
various  persons  for  an  identical  kind  of  service,  under  identical  condi- 
tions. Such  partiality'  is  legitimate  in  private  business,  but  how  can  it 
square  with  the  obligations  of  a  public  emploj'ment?  A  person  having 
a  public  dut}'  to  discharge,  is  undoubtedly  bound  to  exercise  such  office 
for  the  equal  benefit  of  all,  and  therefore  to  permit  tlie  common  carrier 
to  charge  various  prices,  according  to  the  person  with  whom  he  deals, 
for  the  same  services,  is  to  forget  that  he  owes  a  dut}-  to  the  community. 
If  he  exacts  different  rates  for  the  carriage  of  goods  of  the  same  kind, 
between  the  same  points,  he  violates,  as  plainly,  though  it  may  be  not 
in  the  same  degree,  the  principle  of  public  policy  which,  in  his  own  de- 
spite, converts  his  business  into  a  public  employment.  The  law  that 
forbids  him  to  make  any  discrimination  in  favor  of  the  goods  of  A  over 
the  goods  of  B,  when  the  goods  of  both  are  tendered  for  carriage,  must, 
it  seems  to  me,  necessaril}'  forbid  any  discrimination  with  respect  to  the 
rate  of  pay  for  the  carriage.  I  can  see  no  reason  why,  under  legal 
rules,  perfect  equality  to  all  persons  should  be  exacted  in  the  deahngs 
of  the  common  carrier,  except  with  regard  to  the  amount  of  compensa- 
tion for  his  services.  The  rules  that  the  carrier  shall  receive  all  the 
goods  tendered  loses  half  its  value,  as  a  politic  regulation,  if  the  cost 
of  transportation  can  be  graduated  by  special  agreement  so  as  to  favor 
one  party  at  the  expense  of  others.  Nor  would  this  defect  in  the  law, 
if  it  existed,  be  remedied  by  the  principle  which  compels  the  carrier  to 
take  a  reasonable  hire  for  his  labor,  because,  if  the  rate  charged  bj-  him 
to  one  person  might  be  deemed  reasonable,  by  charging  a  lesser  price 
to  another  for  similar  services,  he  disturbs  that  equality  of  rights  among 
his  employers  which  it  is  the  endeavor  of  the  law  to  effect.  Indeed, 
when  a  charge  is  made  to  one  person,  and  a  lesser  charge,  for  precisely 
the  same  offices,  to  another,  I  think  it  should  be  held  that  the  higher 
charge  is  not  reasonable ;  a  presumption  wliich  would  cut  up  by  the 
roots  the  present  agreement,  as,  b}'  the  operation  of  this  rule,  it  would 
be  a  promise  founded  on  the  supposition  that  some  other  person  is  to 
be  charged  more  than  the  law  warrants. 

From  these  considerations,  it  seems  to  me,  that  testing  the  duties  of 
this  class  of  bailees  by  the  standard  of  the  ancient  principles  of  the  law, 
the  agreement  now  under  examination  cannot  be  sanctioned.  Tliis  is 
the  sense  in  which  Mr.  Smith  understands  the  common  law  rule.  In 
his  Leading  Cases,  p.  174,  speaking  of  the  liabilities  of  carriers,  he  says  : 
"The  hire  charged  must  be  no  more  than  a  reasonable  remuneration 
to  the  carrier,  and,  consequenth',  not  more  to  one  (though  a  rival  car- 
rier) than  to  another,  for  the  same  service."  I  am  aware,  that  in  the 
case  of  Baxendale  v.  The  Eastern  Counties  Railway,  4  C.  B.  (N.  S.) 
81,  this  definition  of  the  common  law  rule  was  criticised  by  one  of  the 
judges,  but  the  subject  was  not  important  in  that  case,  and  was  not 
discussed,  and  the  expression  of  opinion  with  respect  to  it  was  entirely 
cursory.     Indeed,  the  whole  question  has  become  of  no  moment  in  the 


360  MESSENGEK   V.    PENNSYLVANIA    RAILROAD    CO. 

English  law,  as  the  subject  is  specifically  regulated  by  the  statute  17 
and  18  Vict.,  ch.  31,  which  prohibits  the  giving  "  of  any  undue  or  un- 
reasonable preference  or  advantage  to  or  in  favor  of  any  particular  per.- 
son  or  company,  or  any  particular  description  of  traffic,  in  any  respect 
whatsoever."  The  date  of  this  act  is  1854,  and  since  that  time  the 
decisions  of  tlie  courts  of  Westminster  have,  when  discussing  this  class 
of  the  responsibilities  of  common  carriers,  been  devoted  to  its  exposi- 
tion. But  the  courts  of  Pennsylvania  have  repeatedly  declared  that 
this  act  was  but  declaratory  of  the  doctrine  of  the  common  law.  This 
was  so  held  in  the  case  of  Sandford  v.  The  Catawissa,  WiUiamsport,  & 
Erie  Railroad  Co.,  24  Penn.  378,  in  which  an  agreement  by  a  railway 
company  to  give  an  express  company  the  exclusive  right  to  carry  goods 
in  certain  trains  was  pronounced  to  be  illegal.  In  a  more  recent  de- 
cision, Mr.  Justice  Strong  refers  to  this  ease  with  approval,  and  says 
that  the  special  provisions  which  are  sometimes  inserted  in  railroad 
charters,  in  restraint  of  undue  preferences,  are  "but  declaratory  of 
what  the  common  law  now  is."  This  is  the  view  which,  for  the  reasons 
already  given,  I  deem  correct. 

But  even  if  this  result  could  not  be  reached  by  fair  induction  from  the 
ancient  principles  which  regulate  the  relationship  between  this  class  of 
bailees  and  their  employers,  I  should  still  be  of  opinion  that  we  would 
be  necessarily  led  to  it  by  another  consideration. 

I  have  insisted  that  a  common  carrier  was  to  be  regarded,  to  some 
extent  at  least,  as  clothed  with  a  public  capacity,  and  I  now  maintain, 
that  even  if  this  theory  should  be  rejected,  and  thrown  out  of  the  argu- 
ment, still  the  defendants  must  be  considered  as  invested  with  that  at- 
tribute. In  my  opinion,  a  railroad  company,  constituted  under  statutory 
authorit}-,  is  not  only,  b^-  force  of  its  inherent  nature,  a  common  carrier, 
as  was  held  in  the  case  of  Palmer  v.  Grand  Junction  Railway,  4  M.  & 
W.  749,  but  it  becomes  an  agent  of  the  public  in  consequence  of  the 
powers  conferred  upon  it.  A  company  of  this  kind  is  invested  with 
important  prerogative  franchises,  among  which  are  the  rights  to  build 
and  use  a  railway-,  and  to  charge  and  take  tolls  and  fares.  Tliese  pre- 
rogatives are  grants  from  the  government,  and  public  utility  is  the  con- 
sideration for  them.  Although  in  the  hands  of  a  private  corporation, 
the}-  are  still  sovereign  franchises,  and  must  be  used  and  treated  as 
such  ;  they  must  be  held  in  trust  for  the  general  good.  If  the}-  had 
remained  under  the  control  of  the  state,  it  could  not  be  pretended,  that 
in  the  exercise  of  them  it  would  have  been  legitimate  to  favor  one  citi- 
zen at  the  expense  of  another.  If  a  state  should  build  and  operate  a 
railroad,  the  exclusion  of  everything  like  favoritism  with  respect  to  its  use 
would  seem  to  be  an  obligation  that  could  not  be  disregarded  without 
violating  natural  equity  and  fundamental  principles.  And  it  seems  to 
me  impossible  to  concede,  that  when  such  rights  as  these  are  handed 
over,  on  public  considerations,  to  a  company  of  individuals,  such  rights 
lose  their  essential  charactoi-istics.  I  think  they  are,  unalterably,  parts 
of  the  supreme  authority,  and  in  whatsoever  hands  the}-  may  be  found, 


MESSENGER  V.   PENNSYLVANIA   EAILROAD   CO.  361 

they  must  be  considered  as  such.  In  the  use  of  such  franchises,  all  citi- 
zens have  an  equal  interest  and  equal  rights,  and  all  must,  under  the  same 
circumstances,  be  treated  alike.  It  cannot  be  sufjposed  that  it  was  the 
legislative  intention,  when  such  privileges  were  given,  that  they  were  to 
be  used  as  private  propert}-,  at  the  discretion  of  the  recipient,  but,  to 
the  contrary  of  this,  I  think  an  implied  condition  attaches  to  such 
grants,  tliat  they  are  to  be  held  as  a  quasi  public  trust  for  the  benefit, 
at  least  to  a  considerable  degree,  of  the  entire  community.  In  their 
very  nature  and  constitution,  as  I  view  this  question,  tlicse  companies 
become,  in  certain  aspects,  public  agents,  and  the  consequence  is,  they 
must,  in  the  exercise  of  their  calling,  observe  to  all  m^n  a  perfect  im- 
partiality. On  these  grounds,  the  contract  now  in  suit  must  be  deemed 
illegal  in  tlie  ver}'  particular  on  which  a  recovery  is  sought. 

The  result  is,  the  defendants  must  have  judgment  on  the  demurrer. 

In  the  Court  of  Errors  and  Appeals,  on  error  to  the  Supreme  Court, 
the  opinion  of  the  Court  was  delivered  by 

Bedle,  J.^  The  business  of  the  common  carrier  is  for  the  public,  and 
it  is  his  duty  to  serve  the  public  indifferently.  He  is  entitled  to  a  rea- 
sonable compensation,  but  on  payment  of  that  he  is  bound  to  carry  for 
whoever  will  employ  him,  to  the  extent  of  his  ability.  A  private  carrier 
can  make  what  contract  he  pleases.  The  public  have  no  interest  in 
that,  but  a  service  for  the  public  necessarily  implies  equal  treatment  ia 
its  performance,  when  the  right  to  the  service  is  common.  Because 
the  institution,  so  to  speak,  is  public,  every  member  of  the  community 
stands  on  an  equality  as  to  the  right  to  its  benefit,  and,  therefore,  the 
carrier  cannot  discriminate  between  individuals  for  whom  he  will  render 
the  service.  In  the  ver}'  nature,  then,  of  his  duty  and  of  the  public 
right,  his  conduct  should  be  equal  and  just  to  all.  So,  also,  there  is 
involved  in  the  reasonableness  of  his  compensation  the  same  principle. 
A  want  of  uniformity  in  price  for  the  same  kind  of  service  under  like 
circumstances  is  most  unreasonable  and  unjust,  when  the  right  to  demand 
it  is  common.  It  would  be  strange  if,  when  the  object  of  the  employ- 
ment is  the  public  benefit,  and  the  law  allows  no  discrimination  as  to 
individual  customers,  but  requires  all  to  be  accommodated  alike  as  indi- 
viduals, and  for  a  reasonable  rate,  that  by  the  indirect  means  of  unequal 
prices  some  could  lawfully  get  the  advantage  of  the  accommodation  and 
others  not.  A  direct  refusal  to  carry  for  a  reasonable  rate  would  in- 
volve the  carrier  in  damages,  and  a  refusal,  in  efll'ect,  could  be  accom- 
plished bv  unfair  and  unequal  charges,  or  if  not  to  that  extent,  the 
pul)lic  right  to  the  convenience  and  usefulness  of  the  means  of  carriage 
could  be  greatly  impaired.  Besides,  the  injur}-  is  not  only  to  the  indi- 
vidual affected,  but  it  reaches  out,  disturbing  trade  most  seriously. 
Competition  in  trade  is  encouraged  b}'  the  law,  and  to  allow  any  one  to 
use  means  established  and  intended  for  the  public  good,  to  promote  un- 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


362  MESSENGER  V.   PENNSYLVANIA   RAILROAD   CO. 

fair  advantages  amongst  the  people  and  foster  monopolies,  is  against 
public  policy,  and  should  not  be  permitted.   .   .   . 

It  must  not  be  inferred  that  a  common  carrier,  in  adjusting  his  price, 
cannot  regard  the  peculiar  circumstances  of  the  particular  transporta- 
tion. Many  considerations  may  properlj-  enter  into  the  agreement  for 
carriage  or  the  establishment  of  rates,  such  as  the  quantity  carried,  its 
nature,  risks,  the  expense  of  carriage  at  different  periods  of  time,  and 
the  like  ;  but  he  has  no  right  to  give  an  exclusive  advantage  or  prefer- 
ence, in  that  respect,  to  some  over  others,  for  carriage,  in  the  course  of 
his  business.  For  a  like  service,  the  public  are  entitled  to  a  like  price. 
There  may  be  isolated  exceptions  to  this  rule,  where  the  interest  of  the 
immediate  parties  is  alone  involved,  and  not  the  rest  of  the  public,  but 
th.e  rule  must  be  applied  whenever  the  service  of  the  carrier  is  sought 
or  agreed  for  in  the  range  of  business  or  trade.  This  contract  being 
clearl}'  within  it,  and  odious  to  the  law  in  the  respect  on  which  a  recover}' 
is  sought,  cannot  be  sustained.  But  there  is  an  additional  ground  upon 
which  it  is  also  objectionable.  I  entireh'  agree  with  the  Chief  Justice, 
that,  in  the  grant  of  a  franchise  of  building  and  using  a  public  railwaj-, 
that  there  is  an  implied  condition  that  it  is  lield  as  a  qi(asi  public  trust, 
for  the  benefit  of  all  the  public,  and  that  the  company-  possessed  of  the 
grant  must  exercise  a  perfect  impartiality  to  all  who  seek  the  benefit  of 
the  trust.  It  is  true  that  these  railroad  corporations  are  private,  and, 
in  the  nature  of  their  business,  are  subject  to  and  bound  b\-  the  doc- 
trine of  common  carriers,  yet,  beyond  that,  and  in  a  peculiar  sense,  they 
are  intrusted  with  certain  functions  of  the  government,  in  order  to 
afford  the  public  necessary  means  of  transportation.  The  bestowment 
of  these  franchises  is  justified  onl}'  on  the  ground  of  the  public  good, 
and  they  must  be  held  and  enjoyed  for  that  end.  This  public  good  is 
common,  and  unequal  and  unjust  favors  are  entirelj'  inconsistent  with 
the  common  right.  So  far  as  their  duty  to  serve  the  public  is  concerned, 
they  are  not  only  common  carriers,  but  public  agents,  and  in  their  very 
constitution  and  relation  to  the  public,  there  is  necessarily  implied  a 
dut}'  on  their  part,  and  a  right  in  the  public,  to  have  fair  treatment  and 
immunity  from  unjust  discrimination.  The  light  of  the  public  is  equal 
in  every  citizen,  and  the  trust  must  be  performed  so  as  to  secure  and 
protect  it. 

Every  trust  should  be  administered  so  as  to  afford  to  the  cestui  que 
trust  the  enjoyment  of  the  use  intended,  and  these  railroad  trustees 
must  be  held,  in  their  relation  to  the  public,  to  such  a  course  of  dealing 
as  will  insure  to  ever}'  member  of  the  community  the  equal  enjoyment 
of  the  means  of  transportation  provided,  subject,  of  course,  to  tlieir 
reasonable  al)ility  to  perform  the  trust.  In  no  other  way  can. trade  and 
commercial  interchange  be  left  free  from  unjust  interference.  On  this 
latter  ground,  that  part  of  tlie  contract  in  question  is  illegal. 

The  judgment  of  the  Supreme  Court  must  be  affirmed. 


SILKMAN   V.   WATER   COMMISSIONERS.  363 

SILKMAN  V.   WATER   COMMISSIONERS. 
Court  of  Appeals,  New  York,  1897. 

[152  N.  Y.  327.1] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  entered  August  3,  1893,  which 
affirmed  a  judgment  in  favor  of  defendant  entered  upon  a  decision  of 
the  court  dismissing  the  complaint  npon  the  merits  on  trial  at  Special 
Term. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion. 

Martin,  J.  .  .  .  The  claim  of  the  plaintiff,  that  the  rents  established 
In"  the  defendant  were  not  authorized  b}'  the  act  incorporating  it,  can- 
not be  sustained.  In  broad  terms,  the  act  conferred  upon  the  defend- 
ant the  power  to  establish  a  scale  of  rents  to  be  charged  and  paid  for 
the  use  and  supply  of  water,  having  reference  to  matters  referred  to  in 
the  statute,  among  which  was  the  consumption  of  water.  The  objec- 
tion made  here  is  tliat  the  persons  who  consumed  large  quantities  of 
water  were  not  charged  as  much  per  hundred  cubic  feet  as  those  who 
consumed  a  less  amount.  Under  this  statute  the  question  of  consump- 
tion was  one  of  the  elements  to  be  considered  in  determining  the  rates. 
Surely,  it  cannot  be  said  to  be  unreasonable  to  provide  less  rates  where 
a  large  amount  of  water  is  used  than  where  a  small  quantity  is  con- 
sumed. That  principle  is  usually  present  in  all  contracts  or  established 
rents  of  that  character.  It  will  be  found  in  contracts  and  charges  re- 
lating to  electric  lights,  gas,  private  water  companies,  and  the  like,  and 
is  a  business  principle  of  general  application.  We  find  in  the  rates  as 
they  were  established  nothing  unreasonable,  or  that  would  in  any  way 
justify  a  court  interfering  with  them. 

It  follows  that  the  decisions  of  the  courts  below  were  correct,  and 
should  be  affirmed. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Judgment  affirmed? 

1  This  case  is  abridged. — Ed. 

2  Compare:  Burlington  Co.  v.  Fuel  Co.  31  Fed.  652  ;  Louisville  Co.  v.  Wilson,  132 
lud.  517  ;  Schofield  v.  Lake  Shore  K.  R.,  43  Ohio  St.  571.—  Ed. 


364  318J   TONS   OF   COAL. 


3181  TONS   OF   COAL. 

District  Court  op  the  United  States  (Conn.),   1877. 
Circuit  Court  of  the  United  States,  1878. 

[14  Blatch.  453.] 

Libel  in  rem  for  freight  and  demurrage. 

The  libellants  carried  a  cargo  of  coal  to  New  Haven,  to  be  delivered 
to  the  Glasgow  Co.  at  the  Canal  Railroad  Dock.  The  consignee  was 
located  near  the  line  of  the  railroad  in  Massachusetts.  It  was  the 
custom  of  the  port  for  coal,  thus  consigned  to  a  railroad  wharf,  to  be 
shovelled  from  the  hold  of  the  vessel  into  large  buckets,  let  down  and 
hauled  up  by  a  steam  derrick,  which  discharged  them  into  the  cars  of 
the  railroad.  Prior  to  1871,  the  shovellers  who  filled  the  buckets  had 
been  hired  and  paid  by  the  master  of  the  vessel.  In  that  year  the  Canal 
Railroad  Co.  made  a  rule  that  it  would  thereafter  supply  all  coal  vessels 
with  shovellers,  at  ten  cents  a  ton,  and  that  no  vessel  could  discharge 
except  by  using  shovellers  thus  supplied.  Ten  cents  a  ton  was  then 
the  ordinary  rate  of  wages  for  such  services,  but  in  1876  charges  of 
shovellers  fell,  and  the}^  could  be  hired  for  eight  cents.  The  libellants 
thereupon  hired  shovellers  at  eight  cents,  and  refused  to  receive  those 
furnished  by  the  companv,  unless  they  would  work  at  the  same  rate. 
The  company  for  this  cause  refused  to  allow  the  cargo  to  be  unloaded, 
and  it  was  discharged  at  a  neighboring  wharf,  after  some  dela^-,  and 
there  libelled. 

Shipman,  J.  If  the  rule  is  valid  and  reasonable,  there  was  no  de- 
livery of  the  coal.  If  the  rule  is  invalid  or  unreasonable,  there  was  a 
delivery,  or  its  equivalent,  an  offer  and  tender  of  delivery  to  the  person 
entitled  to  receive  the  coal,  at  the  usual  and  reasonable  time  and  place, 
and  in  the  reasonable  manner  of  delivery,  and  a  refusal  to  accept  on 
the  part  of  the  railroad  company.  In  the  latter  event,  the  contract  of 
affreightment  was  complied  with  by  the  libellants,  and  freight  was 
earned.  No  question  was  made  as  to  the  liability  of  the  defendants 
under  the  bill  of  lading,  for  freight,  in  case  the  railroad  company  im- 
properly refused  to  receive  the  coal.  The  bill  of  lading  required  de- 
livery to  the  defendants  at  the  Canal  Dock.  It  is  admitted  that  the 
company,  upon  notiiication  that  the  coal  was  ready  to  be  discharged, 


318^   TONS    OF   COAL.  365 

replied  that  said  cargo  might  be  forthwith  discharged,  and  would  be 
received  liy  it  for  the  defendants. 

The  railroad  company  is  not  mereh*  an  owner  of  a  private  wharf, 
having  restricted  duties  to  perform  towards  the  public.  Such  a  wharf 
owner  may  properly  construct  his  wharf  for  particular  kinds  of  business, 
and  may  make  rules  to  limit  and  to  restrict  the  manner  in  wliich  his 
property  shall  be  used  ;  (Croucher  v.  Wilder,  98  Mass.  322  ;)  but  the 
railroad  company  is  a  common  carrier,  and  its  wharf,  occupied  by  rail- 
road tracks,  is  the  place  provided  by  itself  for  the  reception  of  goods 
which  must  be  received  and  transported,  in  order  to  comply  with  its 
public  obligations.  The  coal  was  to  be  received  from  the  vessel  liy  the 
railroad  company,  as  the  carrier  next  in  line,  and  thence  carried  to  its 
place  of  destination.  The  question  which  is  at  issue  between  the  par- 
ties depends  upon  the  power  of  a  common  carrier  to  establish  rules 
which  shall  prescribe  b}-  what  particular  persons  goods  shall  be  deliv- 
ered to  him  for  transportation.  "Common  carriers  undertake  generally, 
and  not  as  a  casual  occupation,  and  for  all  people  indifferently,  to  con- 
vey goods  and  deliver  them  at  a  place  appointed,  for  hire,  as  a  business, 
and  with  or  without  a  special  agreement  as  to  price.  ...  As  they  hold 
themselves  to  the  world  as  common  carriers  for  a  reasonable  compen- 
sation, they  assume  to  do,  and  are  bound  to  do,  what  is  required  of 
them  in  the  course  of  their  employment,  if  they  have  the  requisite  con- 
venience to  carr}',  and  are  offered  a  reasonable  or  customary  price  ; 
and,  if  the}'  refuse,  without  some  just  ground,  the}'  are  liable  to  an 
action."  (2  Kent's  Comm.  599.)  A  common  carrier  is  under  an  obli- 
gation to  accept,  within  reasonable  limits,  ordinary  goods  which  may 
be  tendered  to  him  for  carriage  at  reasonable  times,  for  which  he  has 
accommodation.  (Crouch  v.  L.  &  N.  W.  Eailway  Co,  14  C.  B.  255.) 
The  carrier  cannot  generally  discriminate  between  persons  who  tender 
freight,  and  exclude  a  particular  class  of  customers.  The  railroad 
company  could  not  establish  the  rule  that  it  would  receive  coal  only 
from  certain  barge  owners,  or  from  a  particular  class  of  barge  captains. 
It  carries  "  for  all  people  indifferently."  But,  while  admitting  this 
duty,  the  company  has  declared  that,  for  the  convenience  of  the  public, 
and  in  order  to  transport  coal  more  expeditiously,  and  to  avoid  delays, 
it  will  receive  such  coal  only,  from  barges  at  its  wharf,  as  shall  be  de- 
livered through  the  agency  of  laborers  selected  by  the  company.  This 
rule  is  a  restriction  upon  its  common  law  obligation.  The  carrier,  on 
its  part,  is  bound  to  receive  goods  from  all  persons  alike.  The  duty 
and  the  labor  of  delivery  to  the  carrier  is  imposed  upon  the  barge 
owner,  wlio  pays  for  the  necessary  labor.  The  service,  so  far  as  the 
shovelling  is  concerned,  is  performed,  not  upon  the  property  of  the 
railroad  company,  but  upon  the  deck  of  the  vessel.  The  company  is 
virtually  saying  to  the  barge  owner,  You  shall  employ  upon  your  own 
property,  in  the  service  which  you  are  bound  to  render,  and  for  which 
you  must  pay,  only  the  laborers  whom  we  designate,  and,  though  our 
general  duty  is  to  receive  all  ordinary  goods  delivered   at  reasonalile 


366  318^   TONS   OF   COAL. 

times,  we  will  receive  onl}-  those  goods  which  ma}'  be  handled  by  per- 
sons of  our  selection.  The  law  relating  to  carriers  has  not  3et  permitted 
them  to  impose  such  limitations  upon  the  reception  or  acceptance  of 
goods.  The  carrier  may  properly  impose  reasonable  restrictions  in  re- 
gard to  the  persons  b}'  whom  he  shall  deliver  goods  to  the  consignee 
or  the  carrier  next  in  line.  The  delivery  of  goods  is  the  duty  of  the 
carrier,  for  which  he  is  responsible,  and  should  be  in  his  own  contrul. 
(Beadell  v.  Eastern  Counties  R.  Co.,  2  C.  B.  N.  S.  509.)  It  would  not 
be  contended  that  the  railroad  company  could  designate  the  crew  upon 
the  barge,  or  could  select  the  barge  captains,  and  1  am  of  opinion  that 
it  has  no  more  authority  over  tlie  selection  of  the  other  employees  of 
the  barge  owners.  The  fact  that  the  barge  owners  are  using,  for  a 
compensation,  the  derricks  and  tubs  of  ihe  railroad  company,  is  not 
material.  The  berths  under  the  derricl\S  have  been  designated  by  the 
compan}',  as  proper  places  where  coal  is  to  be  received,  and,  under 
reasonable  circumstances  as  to  time,  and  freedom  from  interference 
with  prior  occupants,  the  incoming  barges  properly  occupy  such  posi- 
tions. Delivery  is  impracticable  at  the  places  designated  by  the 
company  for  deliver}-,  without  the  use  of  the  railroad  company's 
machinery. 

It  is  true,  that,  under  this  rule,  the  delivery  of  coal  into  the  cars  of 
the  railroad  compan}'  has  been  more  expeditiously'  performed,  and  has 
been  attended  with  fewer  delays  than  formerly,  and  that  the  rule  has 
been  a  convenience  to  the  consignees,  but  the  convenience  of  the  prac- 
tice is  not,  of  itself,  an  adequate  reason  for  compelling  its  enforcement, 
if  it  interferes  with  the  legal  rights  of  others.  I  am  not  prepared  to 
sa}',  that,  for  the  orderly  management  of  an  extensive  through  freight- 
ing business  by  means  of  connecting  lines,  and  for  the  systematic  and 
efficient  transportation  of  immense  quantities  of  goods,  it  may  not 
hereafter  be  found  a  necessity  tliat  one  or  the  other  of  the  connecting 
lines  shall  be  furnished  with  the  power  whicli  is  now  sought  by  the  rail- 
road company  ;  but,  in  the  present  condition  of  the  coal  traffic  at  the 
port  of  New  Haven,  this  necessity  does  not  exist.  The  power  is  a 
convenience  to  the  railroad  company.  It  is  not  a  necessity  for  the 
transaction  of  business. 

It  is  not  necessarv  to  consider  the  inconveniences  which  may  flow 
from  the  rule,  but  the  case  discloses  one  practical  inconvenience  which 
may  arise.  The  rule  presupposes  that  the  same  price  is  to  be  charged 
by  the  employees  furnished  by  the  railroad  company,  which  is  genei*- 
ally  paid  by  others  for  the  same  service.  When  prices  are  unvarying, 
no  serious  trouble  results.  There  is  no  alternative,  however,  for  the 
barge  owners,  but  to  pay  the  price  which  the  railroad  company  declares 
to  be  the  general  price,  or  else  submit  to  a  refusal  on  the  part  of  the 
railroad  company  to  accept  the  coal.  The  barge  ca[)tain  may  be  able 
to  ol)tain  the  service  at  a  reduced  rate,  as  he  could  have  done  in  tiiis 
case,  but  he  must  pay  his  own  employees  the  regular  tariff  which  tlie 
company  has  established,  and  then  have  the  question  of  rates  deter- 


318i   TONS   OF   COAL.  367 

mined  b}-  litigation.  The  result  would  be,  that  annoying  litigation  or 
vexatious  altercations  would  ensue.  If  the  barge  owners  are  to  make 
the  payment,  they  should  have  an  opportunity  to  make  their  own  eon- 
tracts,  and  to  take  advantage  of  changes  in  the  price  of  lalior. 

As  matter  of  law,  it  is  held  that  the  rule  is  invalid,  and  that  a  valid 
delivery  was  made  of  the  coal,  whereby  freight  was  earned  in  accord- 
ance with  the  terms  of  the  contract.  "  Damages  in  the  nature  of 
demurrage  are  recoverable  for  detention  beyond  a  reasonable  time,  in 
unloading  only,  and  where  there  is  no  express  stipulation  to  pay 
demurrage."     (Wordin  v.  Bemis,  32  Conn.  268.) 

The  libellants  are  entitled  to  a  decree  for  the  freight  at  the  rate 
mentioned  in  the  bill  of  lading,  less  $19.55,  the  amount  paid,  to  wit,  the 
sum  of  $171.55,  and  for  damages  in  the  nature  of  demurrage,  for  a 
detention  for  six  days,  being  $114.66. 

The  claimants  appealed. 

Simeon  E.  Baldwin  and  William  K.  Townsend,  for  the  libellants. 

Johnson  T.  Piatt,  for  the  claimants. 

Blatchford,  J.  The  decision  of  this  case  in  the  District  Court  was 
placed  upon  the  ground  that  the  New  Haven  and  Northampton  Com- 
pan}',  as  a  common  carrier,  had  no  right  to  impose  on  the  canal-boat 
the  requirement  that  it  should,  as  a  condition  of  the  right  to  place  the 
coal  in  the  tubs  of  the  company,  attached  to  the  company's  derrick, 
employ,  to  place  it  there,  shovellers  designated  by  the  company,  and 
pa}'  such  shovellers  the  rate  of  compensation  fixed  by  the  company  for 
such  service.  It  is  contended,  in  this  court,  by  the  claimants,  that  the 
District  Court  ignored  the  status  of  the  company  as  a  wharf  owner ; 
that  the  company,  as  the  owner  of  the  wharf,  had  the  right  to  make 
reasonable  rules  in  regard  to  the  use  of  the  wharf;  that  the  company 
had  a  right,  by  statute,  to  exact  seven  cents  per  ton  for  coal  discharged 
at  its  wharf,  as  wharfage  ;  that  the  libellants'  boat  was  not  charged 
any  such  wharfage  ;  that  the  use  by  the  boat  of  the  facilities  provided 
by  the  company,  in  the  way  of  derricks,  hoisting  engines,  etc.,  is  the 
use  of  the  wharf;  that  all  which  the  company  did  was  to  refuse  to 
allow  the  boat  to  use  those  facilities,  and  thus  use  the  wharf,  unless  it 
would  permit  the  coal  to  be  shovelled  into  the  tubs  by  men  designated 
by  the  company  ;  and  that  this  was  only  a  reasonable  regulation  made 
by  the  company,  as  a  wharf  owner.  The  difficulty  with  this  view  of  the 
case  is,  that  the  regulation  was  not  sought  to  be  enforced,  in  fact,  as  a 
regulation  of  wharfage,  or  of  the  use  of  the  wharf  by  the  boat.  There 
was  no  charge  made  against  the  boat  for  the  privilege  of  making  fast 
to  the  wharf;  and,  if  any  payment  was  to  be  made  for  the  use  of  the 
wharf,  by  depositing  the  coal  on  the  wharf,  it  was  to  be  made  by  the 
claimants,  who  were  the  owners  of  the  coal  and  the  employers  of 
the  company.  According  to  the  well  understood  acceptation  of  a  bill  of 
lading  such  as  the  one  in  question  here,  where  the  coal  was  deliverable 
"  to  Glasgow  Co.,  Canal  Dock,  New  Haven," — the  Glasgow  Company 
being  a  mill  owner  at  a  place  on  the  line  of  the  railroad  company,  and 


36S  HAYS  V.   THE  PENNSYLVANIA  COMPANY. 

the  latter  eonipan}"  being  the  owner  of  the  Canal  Dock  at  New  Haven, 
with  its  tracks  running  to  and  on  the  dock,  and  having  derricks  and 
engines  for  lioisting  the  coal  in  tubs  from  the  deck  of  the  boat  to  the 
cars  on  the  tracks,  —  the  coal  was  delivered  by  the  boat  into  the  tubs, 
and  the  boat  paid  the  company  so  much  per  ton  for  hoisting  the  coal 
and  dumping  it  into  the  cars.  The  boat  had  nothing  to  do  with  paying 
anything  for  the  use  or  occupation  of  the  wharf  b}^  the  coal,  and  it  paid 
separately  for  the  hoisting.  If  the  company  had  a  right  to  cliarge  the 
boat  for  tying  up  to,  and  using  the  spiles  on,  the  wharf,  no  such  charge 
was  made.  There  was,  therefore,  no  foundation  for  the  requirement  as 
to  the  shovellers,  in  an}'  relation  between  the  company  as  a  wharf  owner 
and  the  boat. 

The  imposition  of  the  requirement  by  the  claimants'  agent,  as  a 
common  carrier,  was  not  a  reasonable  one.  In  regard  to  this  I  concur 
entireh-  with  the  views  of  the  District  Judge,  in  his  decision  in  the 
court  below.  He  found  that  the  regulation  was  not  a  necessary-  one. 
If  it  had  been  necessary  and  indispensable,  it  would  have  been  reason- 
able. It  might,  indeed,  have  been  reasonable  without  being  necessary. 
But,  to  be  reasonable,  it  mus  be  reasonable  as  respects  both  parties. 
In  the  present  case,  the  effect  of  the  requirement  was  to  impose  on  the 
boat  an  unnecessary  expense  of  two  cents  per  ton  of  coal,  for  shovelling 
into  the  tubs. 

There  must  be  a  decree  for  the  libellants,  in  affirmance  of  the  decree 
below,  with  costs. 


HAYS  V.   THE  PENNSYLVANIA  COMPANY. 

Circuit  Court  of  the  United  States,  N.  Ohio,  1882. 

[12  Fed.  309.] 

Baxter,  C.  J.  The  plaintiffs  were,  for  several  years  next  before  the 
commencement  of  this  suit,  engaged  in  mining  coal  at  Salineville  and 
near  defendant's  road,  for  sale  in  the  Cleveland  market.  The}'  were 
wholly  dependent  on  the  defendant  for  transportation.  Tlieir  com- 
plaint is  that  the  defendant  discriminated  against  them,  and  in  favor 
of  their  competitors  in  business,  in  the  rates  charged  for  carrying  coal 
from  Salineville  to  Cleveland.  But  the  defendant  traversed  this  allega- 
tion. The  issue  thus  made  was  tried  at  the  last  term  of  the  court, 
when  it  appeared  in  evidence  that  defendant's  regular  price  for  car- 
rying coal  between  the  points  mentioned,  in  1876,  was  $1.60  per  ton, 
with  a  rebate  of  from  30  to  70  cents  per  ton  to  all  persons  or  com- 
panies shipping  5,000  tons  or  more  during  the  year,  — the  amount  of 
rebate  being  graduated  by  the  quantity  of  freight  furnished  by  each 
shipper.  Under  this  schedule  the  plaintiffs  were  required  to  pay 
higlicr  rates  on  the  coal  shipped  by  them  than  were  exacted  from 
other  and  rival  parties  who  shipped  larger  quantities.     But  the  defend- 


HAYS  V.    THE  PENNSYLVANIA  COMPANY.  369 

ant  contended,  if  the  discrimination  was  made  in  good  faith,  and  for 
the  purpose  of  stimulating  production  and  increasing  its  tonnage,  it 
was  both  reasonable  and  just,  and  within  the  discretion  confided  by 
law  to  ever}-  common  carrier.  The  court,  however,  entertained  the 
contrary  opinion,  and  instructed  the  jury  that  the  discrimination  com- 
plained of  and  proven,  as  above  stated,  was  contrary  to  law,  and  a 
wrong  to  plaintiffs,  for  which  the}'  were  entitled  to  recover  the  dam- 
ages resulting  to  them  therefrom,  to  wit,  the  amount  paid  by  the 
plaintiffs  to  the  defendant  for  the  transportation  of  their  coal  from 
Salineville  to  Cleveland  (with  interest  thereon)  in  excess  of  the  rates 
accorded  by  defendant  to  their  most  favored  competitors.  The  jury, 
under  these  instructions,  found  for  the  plaintiffs,  and  assessed  their 
damages  at  $4,585.  The  defendant  thereupon  moved  for  a  new  trial, 
on  the  ground  that  the  instructions  given  were  erroneous,  and  this  is 
the  question  we  are  now  called  on  to  decide.  If  the  instructions  are 
correct  the  defendant's  motion  must  be  overruled  ;  otherwise  a  new 
trial  ought  to  be  granted. 

A  reference  to  recognized  elementar}'  principles  will  aid  in  a  cor- 
rect solution  of  the  problem.     The  defendant  is  a  common  carrier  b}' 
rail.     Its  road,   though  owned  by  the   corporation,   was   nevertheless 
constructed   for  public    uses,   and   is,   in  a  qualified   sense,   a   public 
highway.      Hence   everybody  constituting   a   part  of  the    public,  for 
whose  benefit  it  was  authorized,  is  entitled   to  an  equal  and  impar- 
tial participation  in  the  use  of  the  facilities  it  is  capable  of  affording. 
Its  ownership  bj-  the  corporation  is  in  trust  as  well  for  the  public  as 
for  the   shareholders  ;    but  its  first  and   primary  obligation  is  to  the 
public.     We  need  not  recount  all  these  obligations.     It  is  enough  for 
present   purposes  to  say  that  the   defendant  has   no  right  to  make 
unreasonable   and    unjust   discriminations.      But  what  are    such   dis- 
criminations?     No  rule   can  be   formulated  with  sufficient  flexibilit}' 
to  apply   to  every  case  that  ma}'   arise.     It  ma}',   however,  be  said 
that  it  is  only  when  the  discrimination  enures  to  the  undue  advantage 
of  one  man,  in  consequence  of  some  injustice  inflicted  on  another,  that 
the  law  intervenes  for  the  protection  of  the  latter.     Harmless  discrimi- 
nation ma}-  be  indulged  in.     For  instance,  the  carrying  of  one  person, 
•who  is  unable  to  pay  fare,  free,  is  no  injustice  to  other  passengers  who 
may  be  required  to  pay  the  reasonable  and  regular  rates  fixed  by  the 
company.     Nor  would   the   carrying  of  supplies   at  nominal  rates  to 
communities  scourged  by  disease,  or  rendered  destitute  by  fioods  or 
other  casualty,  entitle  other  communities  to  have  their  supplies  carried 
at  the  same  rate.     It  is  tlie  custom,  we  believe,  for  railroad  companies 
to  carry  fertilizers  and  machinery  for  mining  and  manufacturing  pur- 
poses to  be  employed  along  the  lines  of  their  respective  roads  to  de- 
velop the  country  and  stimulate  productions,  as  a  means  of  insuring  a 
permanent  increase  of  their  business,  at  lower  rates  tlian  are  charged 
on  other  classes  of  freight,  because  such  discrimination,  while  ii  tends 
to  advance  the  interest  of  all,  works  no  injustice  to  any  one.     Freight 

24 


370  HAYS  V.    THE  PENNSYLVANIA  COMPANY. 

carried  over  long  distances  ma}'  also  be  carried  at  a  reasonably  less  rate 
per  mile  than  freight  transported  for  shorter  distances,  simply  because 
it  costs  less  to  perform  the  service.  For  the  same  reason  passengers 
ma}'  be  divided  into  different  classes,  and  the  price  regulated  in  accord- 
ance with  the  accommodations  furnished  to  each,  because  it  costs  less 
to  carry  an  emigrant,  with  the  accommodations  furnished  to  that  class, 
than  it  does  to  carry  an  occupant  of  a  palace  car.  And  for  a  like  reason 
an  inferior  class  of  freight  may  be  carried  at  a  less  rate  than  first-class 
merchandise  of  greater  value  and  requiring  more  labor,  care,  and 
responsibility  in  the  handling.  It  has  been  held  that  20  separate  par- 
cels done  up  in  one  package,  and  consigned  to  the  same  person,  may  he 
carried  at  a  less  rate  per  parcel  than  20  parcels  of  the  same  character 
consigned  to  as  many  different  persons  at  the  same  destination,  because 
it  is  supposed  that  it  costs  less  to  receive  and  deliver  one  package  con- 
taining 20  parcels  to  one  man,  than  it  does  to  receive  and  deliver  20 
different  parcels  to  as  many  different  consignees. 

Such  are  some  of  the  numerous  illustrations  of  the  rule  tliat  might 
be  given.  But  neither  of  them  is  exactly  like  the  case  before  us,  either 
in  its  facts  or  principles  involved.  The  case  of  Nicholson  v.  G.  W.  R.  Co., 
4  C.  B.  (N.  S.)  366,  is  in  its  facts  more  nearly  like  the  case  under  con- 
sideration than  any  other  case  that  we  have  been  able  to  find.  This 
was  an  application,  under  the  railway  and  traffic  act,  for  an  injunction 
to  restrain  the  railroad  company  from  giving  lower  rates  to  the  Iluabon 
Coal  Company  than  were  given  to  the  complainant  in  tliat  case,  in  the 
shipment  of  coal,  in  which  it  appeared  that  there  was  a  contract  be- 
tween the  railroad  company  and  the  Ruabon  Coal  Company,  whereby 
the  coal  company  undertook  to  sliip,  for  a  period  of  10  years,  as  much 
coal  for  a  distance  of  at  least  100  miles  over  defendant's  road  as  would 
produce  an  annual  gross  revenue  of  £40,000  to  the  railroad  company, 
in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  In  passing 
on  these  facts  the  court  said  that  in  considering  the  question  of  undue 
preference  the  fair  interest  of  the  railroad  company  ought  to  be  taken 
into  the  account ;  that  the  preference  or  prejudice,  referred  to  by  the 
statute,  must  be  undue  or  unreasonable  to  be  within  the  prohibition  ; 
and  that,  although  it  was  manifest  that  the  coal  company  had  many 
and  important  advantages  in  carrying  their  coal  on  the  railroad  as 
against  the  complainant  and  other  coal  owners,  still  the  question  re- 
mained, were  they  undue  or  unreasonable  advantages?  And  this,  the 
court  said,  mainly  depended  on  the  adequacy  of  the  consideration  given 
by  the  coal  company  to  the  railroad  company  for  the  advantages  afforded 
by  the  latter  to  the  coal  company.  And  because  it  appeared  that  the 
cost  of  carr}ing  coal  in  fully  loaded  trains,  regularly  furnished  at  the 
rate  of  seven  trains  per  week,  was  less  per  ton  to  the  railway  company 
than  coal  delivered  in  the  usual  way,  and  at  irregular  intervals,  and  in 
unequal  quantities,  in  connection  with  the  coal  company's  undertaking 
to  ship  annually  coal  enough  over  defendant's  road,  for  at  least  a 
distance  of  100  miles,  to  produce  a  gross  revenue  to  the  railroad  of 


HAYS   V.   THE    TENNSYLVANIA    COMPANY.  371 

£40,000,  the  court  held  that  the  discriminalion  coinpliiined  of  in  the 
case  was  neither  undue  nor  unreasonable,  and  therefore  denied  the 
application. 

This  case  seems  to  have  been  well  considered,  and  we  have  no  dis- 
position to  question  its  authority.  Future  experience  ma}'  possibly 
call  for  some  modification  of  the  principle  therein  announced.  But 
this  case  calls  for  no  sucli  modification,  inasmuch  as  the  facts  of  that 
case  are  very  different,  when  closel}-  analj-zed,  from  the  facts  proven 
in  this  one.  In  the  former  the  company,  in  wliose  favor  the  discrimi- 
nation was  made,  gave,  in  the  judgment  of  the  court,  an  adequate  con- 
sideration for  tlie  advantages  conceded  to  it  under  and  in  virtue  of  its 
contract.  It  undertook  to  guaranty  £40,000  worth  of  tonnage  per  year 
for  10  years  to  the  railroad  company,  and  to  tendei-  the  same  for  ship- 
ment in  fully  loaded  trains,  at  the  rate  of  seven  trains  per  week.  It 
was  in  consideration  of  these  obligations  —  which,  in  the  judgment  of 
the  court,  enabled  the  railroad  company  to  perform  the  service  at  less 
expense  —  the  court  held  that  the  advantages  secured  by  the  contract 
to  the  coal  company'  were  neither  undue  nor  unreasonable.  But  there 
are  no  such  facts  to  be  found  in  this  case.  There  was  in  tiiis  case  no 
undertaking  by  any  one  to  furnish  an}-  specific  quantity  of  freight  at 
stated  periods  ;  nor  was  any  one  bound  to  tender  coal  for  shipment  in 
fully  loaded  trains.  In  these  particulars  the  plaintiffs  occupied  com- 
mon ground  with  the  parties  who  obtained  lower  rates.  Each  tendered 
coal  for  transportation  in  the  same  condition  and  at  such  times  as  suited 
his  or  their  convenience.  The  discrimination  complained  of  rested  ex- 
clusively on  the  amount  of  freight  supplied  by  the  respective  shippers 
during  the  year.  Ought  a  discrimination  resting  exclusively  on  such  a 
basis  to  be  sustained?  If  so,  then  the  business  of  the  country  is,  in 
some  degree,  subject  to  the  will  of  railroad  officials  ;  for,  if  one  man 
engaged  in  mining  coal,  and  dependent  on  the  same  railroad  for  trans- 
portation to  the  same  market,  can  obtain  transportation  thereof  at  from 
25  to  50  cents  per  ton  less  than  another  competing  with  him  in  business, 
solely  on  the  ground  that  he  is  able  to  furnish  and  does  furnish  the  larger 
quantit}'  for  shipment,  the  small  operator  will  sooner  or  later  be  forced 
to  abandon  the  unequal  contest  and  surrender  to  his  more  opulent  rival. 
If  the  principle  is  sound  in  its  application  to  rival  parties  engaged  in 
raining  coal,  it  is  equally  applicable  to  merchants,  manufacturers,  mil- 
lers, dealers  in  lumber  and  grain,  and  to  everybody'  else  interested  in 
any  business  requiring  any  considerable  amount  of  transportation  b}- 
rail ;  and  it  follows  that  the  success  of  all  such  enterprises  would  de- 
pend as  much  on  the  favor  of  railroad  officials  as  upon  the  energies 
and  capacities  of  the  parties  prosecuting  the  same. 

It  is  not  difficult,  with  such  a  ruling,  to  forecast  the  consequences. 
The  men  who  control  railroads  would  be  quick  to  appreciate  the  power 
with  which  such  a  holding  would  invest  them,  and,  it  may  be,  not  slow 
to  make  the  most  of  their  opportunities,  and  perha[)s  temi)ted  to  favor 
their  friends  to  the  detriment  of  their  personal  or  political  opponents  ; 


372  MENACHO   V.   WARD. 

or  demand  a  division  of  the  profits  realized  from  such  collateral  pur- 
suits as  could  be  favored  or  depressed  by  discriminations  for  or  against 
them  ;  or  else,  seeing  the  augmented  power  of  capital,  organize  into 
overshadowing  combinations  and  extinguish  all  petty  competition,  mo- 
nopolize business,  and  dictate  the  price  of  coal  and  every  other  com- 
moditj-  to  consumers.  We  say  these  results  might  follow  the  exercise 
of  such  a  right  as  is  claimed  for  railroads  in  this  case.  But  we  think 
no  such  power  exists  in  them  ;  they  have  been  authorized  for  the  com- 
mon benefit  of  ever}'  one,  and  cannot  be  lawfully  manipulated  for  tiie 
advantage  of  an}-  class  at  the  expense  of  any  other.  Capital  needs  no 
such  extraneous  aid.  It  possesses  inherent  advantages,  which  cannot 
be  taken  from  it.  But  it  has  no  just  claim,  by  reason  of  its  accu- 
mulated strength,  to  demand  the  use  of  the  public  highways  of  the 
countr}-,  constructed  for  the  common  benefit  of  all,  on  more  favorable 
terms  than  are  accorded  to  the  humblest  of  the  land  ;  and  a  discrimi- 
nation in  favor  of  parties  furnishing  the  largest  quantity  of  freight,  and 
solely  on  that  ground,  is  a  discrimination  in  favor  of  capital,  and  is 
contrary  to  a  sound  public  polic}',  violative  of  that  equality  of  right 
guaranteed  to  every  citizen,  and  a  wrong  to  the  disfavored  part}',  for 
which  the  courts  are  competent  to  give  redress. 

The  motion,  therefore,  for  a  new  trial  will  be  denied,  and  a  judgment 
entered  on  the  verdict  for  the  damages  assessed  and  the  costs  of  the 
suit. 

Welker,  D.  J.,  concurred. 


MENACHO   V.   WARD. 
Circuit  Court  of  the  United  States,  S.  New  York,  1886. 

[27  Fed.  529.] 

AVallace,  J.  The  complainants  have  filed  a  bill  in  each  of  these 
causes  to  restrain  the  defendants  from  making  discriminations  for  trans- 
portation against  the  complainants,  which  consist  in  charging  them  a 
higher  rate  of  freight  than  is  charged  by  defendants  to  other  shippers 
of  merchandise  generally.  A  motion  is  now  made  for  a  preliminary 
injunction.  The  facts  in  each  case  are  essentially  the  same,  and  both 
cases  may  be  considered  together. 

The  complainants  are  merciiants  domiciled  in  the  city  of  New  York, 
and  engaged  in  commerce  between  that  port  and  the  island  of  Culia. 
The  defendants  are  proprietors  or  managers  of  steamship  lines  plying 
between  New  York  and  Cuba.  Formerly  the  business  of  transportation 
between  the  two  places  was  carried  on  by  sailing  vessels.  In  1877  the 
line  of  steamships  known  as  "  Ward's  Line"  was  established,  and  in 
1881  was  incorporated  by  tlie  name  of  the  New  York  &  Cuba  Mail 
Steamship  Line  under  the  general  laws  of  the  State  of  New  York.     At 


MENACHO   V.   WARD.  373 

the  time  of  the  incorporation  of  this  compan}-  the  line  of  steamships 
owned  bv  the  defendants  Alexandre  &  Sons  had  also  been  established. 
These  two  lines  were  competitors  between  New  York  and  Cuba,  but  for 
several  years  both  lines  have  been  operated  under  a  traffic  agreement 
between  themselves,  by  which  uniform  rates  are  charged  by  each  to  the 
public  for  transportation.  The  two  lines  are  the  onl}-  lines  engaged  in 
the  business  of  regular  transportation  between  New  York  and  Cuba  ; 
and  unless  merchants  choose  to  avail  themselves  of  the  facilities  offered 
by  them,  the}'  are  obliged  to  ship  their  merchandise  by  vessels  or 
steamers  which  may  casually  ph'  between  the  two  places. 

It  is  alleged  by  the  complainant  that  the  defendants  have  announced 
generally  to  New  Y'ork  merchants  engaged  in  Cuban  trade  that  they 
must  not  patronize  steamships  which  offer  for  a  single  vojage,  and  on 
various  occasions  when  other  steamships  have  attempted  to  procure 
cargoes  from  New  York  to  Havana  have  notified  shippers  that  those 
employing  such  steamships  would  thereafter  be  subjected  to  onerous 
discriminations  b}'  the  defendants.  The  defendants  allege  in  their 
answer  to  the  bill,  in  effect,  that  it  has  been  found  necessary,  for  the 
purpose  of  securing  sufficient  patronage,  to  make  differences  in  rates  of 
fi'eight  between  shippers  in  favor  of  those  who  will  agree  to  patronize 
the  defendants  exclusivelj'.  Within  a  few  months  before  the  commence- 
ment of  this  suit  two  foreign  steamers  were  sent  to  New  York  to  take 
cargoes  to  Havana,  and  the  complainants  were  requested  to  act  as 
agents.  Thereupon  the  complainants  were  notified  bj'  the  defendants 
that  the}'  would  be  "placed  upon  the  black-list  "  if  they  shi{)ped  goods 
b}-  these  steamers,  and  that  their  rates  of  freight  would  thereafter  be 
advanced  on  all  goods  which  they  might  have  occasion  to  send  b\-  the 
defendants.  Since  that  time  the  defendants  have  habituall}'  cliarged 
the  complainants  greater  rates  of  freight  than  those  merchants  who 
shipped  exclusively  by  the  defendants.  The  freight  charges,  by  the 
course  of  business,  are  paid  by  consignees  at  the  Cuban  ports.  The 
complainants  have  attempted  to  pay  the  freight  in  advance,  but  have 
found  this  course  impracticable  because  their  consignees  are  precluded 
from  deducting  damages  or  deficiencies  upon  the  arrival  of  the  goods 
from  the  charges  for  freight,  and  as  a  result  some  of  the  complainants' 
correspondents  in  Cuba  refuse  to  continue  business  relations  with  them, 
being  unwilling  to  submit  to  the  annoyance  of  readjusting  overcharges 
with  complainants.  Upon  this  state  of  facts  the  complainants  have 
founded  the  allegation  of  their  bill  that  the  defendants  "  have  arbi- 
trarily refused  them  equal  terms,  facilities,  and  accommodations  to 
those  granted  and  allowed  by  the  defendants  to  other  shippers,  and 
have  arbitrarily  exacted  from  them  a  much  greater  rate  of  freight  than 
tlie  defendants  have  at  the  same  time  charged  to  shippers  of  merchan- 
dise generall}'  as  a  condition  of  receiving  and  transporting  merchandise." 
They  apply  for  an  injunction  upon  the  theory  that  their  grievances  can- 
not be  redressed  by  an  action  at  law. 

It  is  contended  for  the  complainants  that  a  common  carrier  owes  an 


374  MENACHO   V.   WAED, 

equal  duty  to  ever}'  member  of  the  communit}-,  and  is  not  permitted  to 
make  unequal  preferences  in  favor  of  one  person,  or  class  of  persons,  as 
against  another  person  or  class.  The  defendants  insist  that  it  is  permit- 
ted to  common  carriers  to  make  reasonable  discriminations  in  the  rates 
demanded  from  the  public  ;  that  the}'  are  not  required  to  carry  for  all 
at  the  same  rates  ;  that  discriminations  are  reasonable  which  are  based 
upon  the  quantity  of  goods  sent  by  different  shippers  ;  and  that  the 
discrimination  in  the  present  case  is  essentially  such  a  discrimination, 
and  has  no  element  of  personal  preference,  and  is  necessary  for  the 
protection  of  the  defendants. 

Unquestionably  a  common  carrier  is  always  entitled  to  a  reasonable 
compensation  for  his  services.  Hence  it  follows  that  he  is  not  required 
to  treat  all  those  who  patronize  him  with  absolute  equality.  It  is  his 
privilege  to  charge  less  than  fair  compensation  to  one  person,  or  to  a 
class  of  persons,  and  others  cannot  justly  complain  so  long  as  he  carries 
on  reasonable  terms  for  them.  Respecting  preferences  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in  each 
particular  transaction,  and  except  as  thus  restricted  he  is  free  to  dis- 
criminate at  pleasure.  This  is  the  equal  justice  to  all  which  the  law 
exacts  from  the  common  carrier  in  his  relations  with  the  public.  Bax  ■ 
endale  v.  Eastern  Counties  R.  Co.,  4  C.  B.  (N.  S.)  78  ;  Branley  v. 
Southeastern  R.  Co.,  12  C.  B.  (N.  S.)  74;  Fitchburg  R.  Co.  v.  Gage, 
12  Gray,  393  ;  Sargent  v.  Boston  &  L.  R.  Corp.,  115  Mass.  416,  422. ^ 

In  the  present  case  the  question  whether  the  defendants  refuse  to 
carry  for  the  complainants  at  a  reasonable  compensation  resolves  itself 
into  another  form.  Can  the  defendants  lawfully  require  the  complain- 
ants to  pay  more  for  carrying  the  same  kind  of  merchandise,  under  like 
conditions,  to  the  same  places,  than  they  charge  to  others,  because  the 
complainants  refuse  to  patronize  the  defendants  exclusively,  while  other 
shippers  do  not?  The  fact  that  the  carrier  charges  some  less  than 
others  for  the  same  service  is  merely  evidence  for  the  latter,  tending  to 
show  that  he  charges  them  too  much ;  but  when  it  appears  that  the 
charges  are  greater  than  those  oi-dinarily  and  uniformly  made  to  others 
for  similar  services,  the  fact  is  not  only  competent  evidence  against  the 
carrier,  but  cogent  evidence,  and  shifts  upon  him  the  burden  of  justifv- 
ing  the  exceptional  charge.  The  estimate  placed  by  a  party  upon  the 
value  of  his  own  services  of  property  is  always  sufficient,  against  him, 
to  establish  the  real  value  ;  but  it  has  augmented  probative  force,  and 
is  almost  conclusive  against  him,  when  he  has  adopted  it  in  a  long 
continued  and  extensive  course  of  business  dealings,  and  held  it  out  as 
a  fixed  and  notorious  standard  for  the  information  of  the  public. 

The  defendants  assume  to  justify  upon  the  theory  tluit  a  carrier  may 
regulate  his  charges  upon  the  bnsis  of  the  quantity  of  goods  delivered 
to  him  for  transportation  bj  different  shippers,  and  that  their  discrimi- 
nation against  the  plaintiff  is  in  substance  one  made  with  reference  to 

1  The  court  here  cited  passa^jjes  from  the  opinions  iu  Messenger  v.  Pennsvlvania  R. 
R.,  37  K  J.  L.  .531,  and  McDuffee  v.  Portland  &  R   R.  R.,  52  N.  H.  430.  —Ed. 


MENACHO   V.   WARD.  375 

the  quanlit\-  of  merchandise  furnished  by  them  for  carriage.  Courts  of 
law  have  alwa3-s  recognized  the  rights  of  carriers  to  regulate  their 
charges  with  reference  to  the  quantity  of  merchandise  carried  for  the 
shipper,  either  at  a  given  sliipment,  or  during  a  given  period  of  time, 
although  public  sentiment  in  many  communities  has  objected  to  such 
discriminations,  and  crystallized  into  legislative  condemnation  of  the 
practice.  By  the  English  statutes  (17  &  18  Vict.  c.  31)  railway  and 
canal  carriers  are  prohibited  from  "  giving  any  undue  or  unreasonable 
preference  or  advantage  to  or  in  favor  of  any  particular  description  of 
traffic,  in  any  respect  whatever,"  in  the  receiving,  forwarding,  and  de- 
livery of  traffic  ;  but  under  these  provisions  of  positive  law  the  courts 
have  held  that  it  is  not  an  undue  preference  to  give  lower  rates  for 
larger  quantities  of  freight.  Ransome  v.  Eastern  C.  R.  Co.,  1  Nev.  & 
McN.  63,  155;  Nicholson  v.  Great  Western  Ry.  Co.,  Id.  121 ;  Strick 
r.  Swansea  Canal  Co.,  16  C.  B.  (N.  S.)  245  ;  Greenop  v.  S.  E.  R.  Co., 
2  Nev.  &  McN.  319. 

These  decisions  proceed  upon  the  ground  that  the  carrier  is  entitled 
to  take  into  consideration  the  question  of  his  own  profits  and  interests 
in  determining  what  charges  are  reasonable.  He  may  be  able  to  carry 
a  large  quantity  of  goods,  under  some  circumstances,  at  no  greater  ex- 
pense tiian  would  be  required  to  carry  a  smaller  quantity.  His  fair 
compensation  for  carrying  the  smaller  quantity  might  not  be  correctly 
measured  by  the  rate  per  pound,  per  bushel,  or  per  mile  charged  for 
the  larger.  If  he  is  assured  of  regular  shipments  at  given  times,  he 
may  be  able  to  make  more  economical  arrangements  for  transportation. 
By  extending  special  inducements  to  the  public  for  patronage  he  may 
be  able  to  increase  his  business,  without  a  corresponding  increase  of 
capita]  or  expense  in  transacting  it,  and  thus  derive  a  larger  profit. 
He  is  therefore  justified  in  making  discriminations  by  a  scale  of  rates 
having  reference  to  a  standard  of  fair  remuneration  of  all  who  patronize 
him.  But  it  is  impossilile  to  maintain  that  any  analogy  exists  between 
a  discrimination  based  upon  the  quantity  of  business  furnished  by  dif- 
ferent classes  of  shippers,  and  one  which  altogether  ignores  this  consid- 
eration, and  has  no  relation  to  the  profits  or  compensation  which  the 
carrier  ought  to  derive  for  a  given  quantum  of  service. 

The  proposition  is  speciously  put  that  the  carrier  may  reasonably 
discriminate  between  two  classes  of  shippers,  the  regular  and  the  casual ; 
and  that  such  is  the  only  discrimination  here.  Undoubtedly  the  carrier 
may  adopt  a  commutative  svstem,  whereb}'  those  who  furnish  him  a 
regular  traffic  may  obtain  reduced  rates,  just  as  he  may  properly  reg- 
ulate his  charges  upon  the  basis  of  the  quantity  of  traffic  which  he 
receives  from  different  classes  of  shippers.  But  this  is  not  the  proposi- 
tion to  be  discussed.  The  defendants  assume  to  discriminate  against 
the  complainants,  not  because  they  do  not  furnish  them  a  regular  busi- 
ness, or  a  given  number  of  shipments,  or  a  certain  quantit}-  of  merchan- 
dise to  carry,  but  because  they  refuse  to  patronize  the  defendants 
exclusively.    The  question  is  whether  the  defendants  refuse  to  carry  for 


376  MENACHO   V.    WAED. 

the  complainants  on  reasonable  terms.  The  defendants,  to  maintain  the 
affirmative,  assert  that  their  charges  are  fair  because  the}-  do  not  have 
the  wliole  of  the  complainants'  carrying  business.  But  it  can  never  be 
material  to  consider  whether  the  carrier  is  permitted  to  enjoy  a  monopoly 
of  the  transportation  for  a  particular  individual,  or  class  of  individuals, 
in  ascertaining  what  is  reasonable  compensation  for  the  services  actu- 
allv  rendered  to  him  or  them.  Such  a  consideration  might  be  influen- 
tial in  inducing  parties  to  contract  in  advance  ;  but  it  has  no  legitimate 
bearing  upon  the  value  of  services  rendei'ed  without  a  special  contract, 
or  which  are  rendered  because  the  law  requires  them  to  be  rendered  for 
a  fair  remuneration. 

A  common  carrier  "  is  in  the  exercise  of  a  sort  of  public  office,  and 
has  public  duties  to  perform,  from  which  he  should  not  be  permitted  to 
exonerate  himself."  Nelson,  J.,  in  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344.  His  obligations  and  liabilities  are  not 
dependent  upon  contract,  though  they  ma}'  be  modified  and  limited  by 
contract.  They  are  imposed  by  the  law,  from  the  public  nature  of  his 
employment.  Hannibal  R.  R.  v.  Swift,  12  Wall.  262.  As  their  busi- 
ness is  "affected  with  a  public  interest,"  it  is  subject  to  legislative 
regulation.  "  In  matters  which  do  affect  the  public  interest,  and  as  to 
which  legislative  control  may  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  courts  must  determine  what  is  reason- 
able." Waite,  C.  J.,  in  Munn  v.  lUinois,  94  U.  S.  113,  134.  It  is 
upon  this  foundation,  and  not  alone  because  the  business  of  common 
carriers  is  so  largely  controlled  by  corporations  exercising  under  fran- 
chises the  privileges  which  are  held  in  trust  for  the  public  benefit,  that 
the  courts  have  so  strenuously  resisted  their  attempts,  by  special  con- 
tracts or  unfair  preferences,  to  discriminate  between  those  whom  it  is 
their  duty  to  serve  impartially.  And  the  courts  are  especially  solicitous 
to  discountenance  all  contracts  or  arrangements  by  these  public  servants 
which  savor  of  a  purpose  to  stifle  competition  or  repress  rivalry  in  the 
departments  of  business  in  which  they  ply  their  vocation.  Illustrations 
are  found  in  the  cases  of  State  v.  Hartford  &  N.  H.  R.  Co.,  29  Conn. 
538  ;  Hooker  v.  Vandewater,  4  Denio,  349  ;  W.  U.  Tel.  Co.  v.  Chicago 
&  P.  R.  Co.,  86  111.  246;  Coe  v.  Louisville  &  N.  R.  Co.,  3  Fed. 
Rep.  775. 

The  vice  of  the  discrimination  here  is  that  it  is  calculated  to  coerce 
all  those  who  have  occasion  to  employ  common  carriers  between  New 
York  and  Cuba  from  employing  such  agencies  as  may  offer.  Its  ten- 
dency is  to  deprive  the  public  of  their  legitimate  opportunities  to  obtain 
carriage  on  the  best  terms  they  can.  If  it  is  tolerated  it  will  result 
practically  in  giving  the  defendants  a  monopoly  of  the  carrying  trade 
between  these  places.  Manifestly  it  is  enforced  by  the  defendants  in 
order  to  discourage  all  others  from  attempting  to  serve  the  public  as 
carriers  between  these  places.  Such  discrimination  is  not  only  unrea- 
sonable, but  is  odious.  Ordinarily  the  remedy  against  a  carrier  is  at 
law  for  damages  for  a  refusal  to  carry,  or  to  recover  the  excess  of 


ROOT   V.   LONG   ISLAND    RAILROAD.  377 

charges  paid  to  obtain  the  dehvery  of  goods.   The  special  circumstances 
in  this  case  indicate  that  such  a  remedy  would  not  afford  complete  and 
adequate  redress,  "  as  practical  and  efficient  to  the  ends  of  justice  "  as 
the  remedy  in  equity.     Watson  v.  Sutherland,  5  Wall.  74. 
The  motion  for  an  injunction  is  granted. 


ROOT  V.    LONG   ISLAND   RAILROAD. 

Court  of  Appeals  of  New  York,  Second  Division,  1889. 
[114  N.  Y.  300;  21  N.  E.  403.] 

Haight,  J.  In  June,  1876,  the  defendant  and  one  Quintard  entered 
into  a  written  contract,  which,  among  other  things,  provided  that 
Quintard  should  build  at  Long  Island  City  upon  the  lands  of  the  de- 
fendant a  dock  250  feet  long  and  40  feet  wide,  and  erect  thereon  a 
pocket  for  holding  and  storing  coal,  according  to  certain  plans  and 
specifications  annexed.  The  defendant  was  to  have  the  use  of  the 
south  side  of  the  dock,  and  also  of  30  feet  of  the  shore  end,  and  the 
right  to  use  the  other  portions  thereof  when  not  required  by  Quintard. 
In  consideration  therefor  the  defendant  agreed  with  Quintard  to  trans- 
port in  its  cars  all  the  coal  in  car-loads  offered  for  transportation  by 
him  at  a  rebate  of  15  cents  per  ton  of  2,240  pounds  from  the  regular 
tariff  rates  for  coal  transported  by  the  defendant  from  time  to  time, 
except  in  the  case  of  the  coal  carried  for  the  Brooklyn  Water-Works 
Company,  with  which  company  the  defendant  reserved  the  right  to 
make  a  special  rate,  which  should  not  be  considered  "the  regular 
tariff  rate."  The  defendant  also  agreed  with  Quintard  to  provide 
him  with  certain  yard  room  and  ofl^ce  room  free  of  rent,  and  the  con- 
tract was  to  continue  for  the  term  of  10  years,  and  at  the  termination 
of  the  contract  the  dock  and  structures  were  to  be  appraised,  and  the 
value  thereof,  less  the  sum  of  S2,000  advanced  by  the  defendant,  to 
be  paid  to  Quintard.  Pursuant  to  this  agreement  the  dock  and  coal 
pocket  were  constructed  at  an  expense  of  $17,000,  and  coal  in  large 
quantities  was  shipped  over  the  defendant's  road  by  Quintard  or  his 
assignee  under  the  contract,  and  it  is  for  the  rebate  of  15  cents  per 
ton  upon  the  coal  so  shipped  that  this  action  was  brought.  The 
defence  is  that  the  contract  was  against  public  policy,  and  was  there- 
fore illegal  and  void. 

The  defendant  is  a  railroad  corporation  organized  under  the  laws 
of  the  State,  and  was  therefore  a  common  carrier  of  passengers  and 
freight,  and  was  subject  to  the  duties  and  liabilities  of  such.  These 
duties  and  liabilities  have  often  been  the  subject  of  judicial  consid- 
eration in  the  different  States  of  the  Union.  In  Illinois  it  has  been 
held  that  a  railroad  corporation,  although  permitted  to  establish  its 
rates  for  transportation,  must  do  so  without  injurious  discrimination 


378  EOOT   V.   LONG    ISLAND    RAILKOAD. 

to  individuals ;  that  its  charges  must  be  reasonable.  Railroad  Co. 
V.  People,  67  111.  11;  Vincent  v.  Railroad  Co.,  49  111.  33.  In  Ohio  it 
was  held  that  where  a  railroad  company  gave  a  lower  rate  to  a  favored 
shipper  with  the  intent  to  give  such  shipper  an  exclusive  monopoly, 
thus  affecting  the  business  and  destroying  the  trade  of  other  shippers, 
the  latter  have  the  right  to  require  an  equal  rate  for  all  under  like 
circumstances.  Scofleld  u.  Railway  Co.,  43  Ohio  St.  571.  In  New 
Jersey  it  has  been  held  that  an  agreement  by  a  railroad  company  to 
carry  goods  for  certain  persons  at  a  cheaper  rate  than  it  would  carry 
under  the  same  condition  for  others  is  void,  as  creating  an  illegal 
preference;  that  common  carriers  are  public  agents,  transacting  their 
business  under  an  obligation  to  observe  equality  towards  every  mem- 
ber of  the  community,  to  serve  all  persons  alike,  without  giving  unjust 
or  unreasonable  advantages  by  way  of  facilities  for  the  carriage,  or 
rates  for  the  transportation,  of  goods.  Messenger  v.  Railroad  Co., 
36  N.  J.  Law,  407;  State  v.  Railroad  Co.,  48  N.  J.  Law,  55.  In 
New  Hampshire  it  has  been  held  that  a  railroad  is  bound  to  carry  at 
reasonable  rates  commodities  for  all  persons  who  offer  them,  as  early 
as  means  will  allow;  that  it  cannot  directly  exercise  unreasonable 
discrimination  as  to  who  and  what  it  will  carry;  that  it  cannot  im- 
pose unreasonable  or  unequal  terms,  facilities,  or  accommodations. 
McDuffee  /'.  Railroad,  52  N.  H.  430.  To  similar  effect  are  cases  in 
other  States.  Express  Co,  i\  Railroad  Co.,  57  Me.  188;  Shipper  v. 
Railroad  Co.,  47  Pa.  St.  338;  Railroad  Co.  v.  Gage,  12  Gray,  393; 
Menacho.  v.  Ward,  27  Fed.  Rep.  529.  In  New  York  the  authorities 
are  exceedingly  meagre.  The  question  was  considered  to  some  extent 
in  the  case  of  Killmer  v.  Railroad  Co.,  100  N.  Y.  395,  in  which  it 
was  held  that  the  reservation  in  the  general  act  of  the  power  of  the 
legislature  to  regulate  and  reduce  charges,  where  the  earnings  exceeded 
10  per  cent  of  the  capital  actually  expended,  did  not  relieve  the  com- 
pany from  its  common  law  duty  as  a  common  carrier;  that  the  ques- 
tion as  to  what  was  a  reasonable  sum  for  the  transportation  of  goods 
on  the  lines  of  a  railroad  in  a  given  case  is  a  complex  question,  into 
which  enter  many  elements  for  consideration. 

In  determining  the  duty  of  a  common  carrier,  we  must  be  reason- 
able and  just.  The  carrier  should  be  permitted  to  charge  reasonable 
compensation  for  the  goods  transported.  He  should  not,  however, 
be  permitted  to  unreasonably  or  unjustly  discriminate  against  other 
individuals,  to  the  injury  of  their  business,  where  the  conditions  are 
equal.  So  far  as  is  reasonable,  all  should  be  treated  alike;  but  we 
are  aware  that  absolute  equality  cannot  in  all  cases  be  required,  for 
circumstances  and  conditions  may  make  it  impossible  or  unjust  to  the 
carrier.  The  carrier  may  be  able  to  carry  freight  over  a  long  distance 
at  a  less  sum  than  he  could  for  a  short  distance.  He  may  be  able  to 
carry  a  large  quantity  at  a  less  rate  than  he  could  a  smaller  quantity. 
The  facilities  for  loading  and  unloading  may  be  different  in  different 
places,  and  the  expenses  may  be  greater  in  some  places  than  in  others. 


ROOT   V.    LONG    ISLAND   KAILROAD.  379 

Numerous  circumstances  ma}-  iutervene  which  bear  upon  the  cost 
and  expenses  of  transportation,  and  it  is  but  just  to  the  carrier  that 
he  be  permitted  to  take  these  circumstances  into  consideration  in 
determining  the  rate  or  amount  of  his  compensation.  His  charges 
must  therefore  be  reasonable,  and  he  must  not  unjustly  discriminate 
against  others,  and  in  determining  what  would  amount  to  unjust  dis- 
crimination all  the  facts  and  circumstances  must  be  taken  into  con- 
sideration. This  raises  a  question  of  fact,  which  must  ordinarily  be 
determined  by  the  trial  court.  The  question  as  to  whether  there 
was  unjust  discrimination  embraced  in  the  provisions  of  the  contract 
does  not  appear  to  have  been  determined  by  the  referee,  for  no  find- 
ing of  fact  appears  upon  that  subject.  Neither  does  it  appear  that 
he  was  requested  to  find  upon  that  question,  and  consequently  there  is 
no  exception  to  the  refusal  to  find  thereon.  Unless,  therefore,  we  can 
determine  the  question  as  one  of  law,  there  is  nothing  upon  this  sub- 
ject presented  for  review  in  this  court.  Is  the  provision  of  the  con- 
tract, therefore,  providing  for  a  rebate  of  15  cents  per  ton  from  the 
regular  taritf  rates,  an  unjust  discrimination  as  a  matter  of  Inw? 
Had  this  provision  stood  alone,  unqualified  b}^  other  provisions,  with- 
out the  circumstances  under  which  it  was  executed  explaining  the 
necessity  therefor,  we  should  be  inclined  to  the  opinion  that  it  did 
provide  for  an  unjust  discrimination;  but,  upon  referring  to  the  con- 
tract, we  see  that  the  rebate  was  agreed  to  be  paid  in  consideration 
for  the  dock  and  coal  pocket  which  was  to  be  constructed  upon  the 
defendant's  premises  at  an  expense  of  $17,000,  in  part  for  the  use  and 
convenience  of  the  defendant.  Quintard  was  to  load  all  the  cars  with 
the  coal  that  was  to  be  transported.  It  was  understood  that  a  large 
quantity  of  coal  was  to  be  shipped  over  defendant's  line,  thus  increas- 
ing the  business  and  income  of  the  company.  The  facilities  which 
Quintard  was  to  provide  for  the  loading  of  the  coal,  his  services  in 
loading  the  cars,  the  large  quantities  which  he  was  to  ship,  in  con- 
nection with  the  large  sums  of  mone}'  that  he  had  expended  in  the 
erection  of  the  dock,  in  part  for  the  use  and  accommodation  of  the 
defendant,  are  facts  which  tend  to  explain  the  provision  of  the  con- 
tract complained  of,  and  render  it  a  question  of  fact  for  the  determi- 
nation of  the  trial  court  as  to  whether  or  not  the  rebate,  under  the 
circumstances  of  this  case,  amounted  to  an  unjust  discrimination, 
to  the  injury  and  prejudice  of  others.  Therefore,  in  this  case,  the 
question  is  one  of  fact,  and  not  of  law;  and,  inasmuch  as  the  discrim- 
ination has  not  been  found  to  be  unjust  or  unreasonable,  the  judgment 
cannot  be  disturbed. 

The  judgment  should  be  affirmed  with  costs. 

All  concur. 

Judgynent  affirmed. 


380  LOUGH   V.   OUTERBEIDGE. 


LOUGH   V.    OUTERBRIDGE. 
Court  of  Appeals  of  New  York,  1894. 

[143  N.  Y.  271  ;  38  N.  E.  292.] 

O'Brien,  J.  The  question  presented  by  this  appeal  is  one  of  very 
great  importance.  It  touches  commerce,  and,  more  especially,  the 
duties  and  obligations  of  common  carriers  to  the  public  at  many 
points.  There  was  no  dispute  at  the  trial,  and  there  is  none  now, 
with  respect  to  the  facts  upon  which  it  arises.  In  order  to  present  the 
question  clearly,  a  brief  statement  of  these  facts  becomes  necessary. 
The  plaintiffs  are  the  surviving  members  of  a  firm  that,  for  many 
years  prior  to  the  transaction  upon  which  the  action  was  based,  had 
been  engaged  in  business  as  commission  merchants  in  the  city  of 
New  York,  transacting  their  business  mainly  with  the  Windward  and 
Leeward  Islands.  The  defendant,  the  Quebec  Steamship  Company, 
is  a  Canadian  corporation,  organized  and  existing  under  the  laws  of 
Canada ;  and  the  other  defendants  are  the  agents  of  the  corporation 
in  New  York,  doing  business  as  partners.  The  business  of  the  cor- 
poration is  that  of  a  common  carrier,  transporting  passengers  and 
freight  for  hire  upon  the  sea  and  adjacent  waters.  For  nearly  20 
years  prior  to  the  transaction  in  question,  a  part  of  its  business  was 
the  transportation  of  cargoes  between  New  York  and  the  Baibadoes 
and  the  Windward  Islands,  the  other  defendants  acting  as  agents  in 
respect  to  this  business.  During  some  years  prior  to  the  commence- 
ment of  this  action,  the  company  had  in  its  service  a  fleet  of  five  or 
six  of  the  highest  class  iron  steamers,  sailing  at  intervals  of  about  ten 
days  from  New  York  to  the  islands,  each  steamer  requiring  about  six 
weeks  to  make  the  trip.  The  steamers  were  kept  constantly  engaged 
in  this  service  and  sailed  regularly  upon  schedule  days  without  refer- 
ence to  the  amount  of  cargo  then  received.  The  regular  and  standard 
rate  charged  for  freight  up  to  December,  1891,  fj-om  New  York  to 
Barbadoes,  one  of  the  Windward  Islands,  was  50  cents  per  dry  barrel 
of  five  cubic  feet,  which  was  taken  as  the  unit  of  measurement,  and 
the  tariff  of  charges  was  adjusted  accordingly  for  goods  shipped  in 
other  forms  and  packages.  In  December,  1891,  the  regular  rate  was 
reduced  from  50  to  40  cents  per  dry  barrel.  About  this  time  the 
British  steamer  El  Callao,  which  had  for  some  years  before  sailed 
between  New  York  and  Ciudad  Bolivar,  in  South  America,  trans- 
porting passengers  and  freight  between  these  points,  began  to  take 
cargo  at  New  York  for  Barbadoes,  and  sometimes  to  other  points  in 
the  Windward  Islands  which  she  passed  on  her  regular  trips  to  Ciudad 
Bolivar,  sailing  from  New  York  at  intervals  of  five  or  six  weeks. 
Her  trade  with  South  America  was  the  principal  feature  of  her  busi- 
ness, but  such  space  as  was  not  required  for  the  cargo  destined  for 
the  end  of  the  route  was  filled  with  cargo  for  the  islands  which  lay 


LOUGII   V.    OUTERBEIDGE.  381 

in  her  regular  course.     The  defendants  evident!}'  regarded  this  vessel 
as  a  somewhat  dangerous  competitor  for  a  part  of  the  business,  the 
benefits  of  which  they  had  up  to  this  time  enjoyed ;  and,  for  the  pur- 
pose of  retaining  it,  they  adopted  the  plan  of  offering  special  reduced 
rates  of  25  cents  per  dry  barrel  to  all  merchants  and  business  men  in 
New  York  who  would  agree  to  ship  by  their  line  exclusively  during 
the  week  that  the  El  Callao  was  engaged  in  obtaining  freight  and 
taking  on  cargo.     The  plaintiffs'  firm  had  business  arrangements  with 
and  were  shipping  by  that  vessel;  and  in  February,  1892,  they  de- 
manded of  the  defendants  that  they  receive  3,000  barrels  of  freight 
from  New  York  to  Barbadoes,  and  transport  the  same  at  the  special 
rate  of  25  cents  per  barrel  upon  one  of  its  steamers.     The  defendants 
then  informed  the  plaiutitfs  that  the  rate  of  25  cents  was  allowed  by 
them  only  to  such  shippers  as  stipulated  to  give  all  their  business 
exclusively  to  the  defendants'  line,  in  preference  to  the  El  Callao,  and 
that  to  all  other  shippers  the  standard  rate  of  40  cents  per  dry  barrel 
was  maintained;  but  they  further  informed  the  plaintiffs  that,  if  they 
would  agree  to  give  their  shipments  for  that  week  exclusively  to  the 
defendants'  line,  the  goods  would  be  received  at  the  25  cents  rate. 
The  plaintiffs,  however,  were  shipping  by  the  other  vessel,  and  de- 
clined this  offer.     Again,  in  the  month  of  May,  1892,  the  El  Callao 
was  in  the  port  of  New  York  taking  on  cargo,  as  w^as  also  the  de- 
fendants' steamer  Trinidad.     The  plaintiffs  then   demanded  of   the 
defendants  that  they  receive  and  carry  from  New  York  to  Barbadoes 
about  1,760  dry  barrels  of  freight  at  the  rate  of  25  cents.     The  de- 
fendants notified  the  plaintiff's  that  a  general  offer  had  that  day  been 
made  by  them  to  the  trade  to  take  cargo  for  Barbadoes  on  the  Trini- 
dad, to  sail  on  June  4th,  at  25  cents  per  dry  barrel,  under  an  agree- 
ment that  shippers  accepting  that  rate  should  bind  themselves  not  to 
ship  to  that  point  by  steamers  of  any  other  line  between  that  date 
and  the  sailing  of  the  Trinidad.     The  defendants  offered  these  terms 
to  the  plaintiffs,  but,  as  they  were  shipping  by  the  rival  vessel,  the 
offer  was  declined.     Except  during  the  week  when  the  El  Callao  was 
engaged  in  taking  on   cargo,  the    defendants    have    maintained    the 
regular  rate  of  40  cents  to  all  shippers  between  these  points;  and, 
when  it  reduced  the  rate  as  above  described,  exactly  the  same  rates, 
terms,   and   conditions  were   offered    to    all    shippers,   including  the 
plaintiffs,  and  carried  freight  for  other  parties  at  the  reduced  rates 
only  upon  their  entering  into  a  stipulation   not  to  ship  by  the  rival 
vessel.     After  the  plaintiffs'  demand  last  mentioned  had  been  refused, 
they  obtained    an  order  from  one  of  the  judges  of  the  court  in  this 
action  requiring  the  defendants  to  carry  the   1,760  barrels,  and  the 
defendants  did  receive  and  transport  them,  in  obedience  to  the  order, 
at  the  rate  of  25  cents;  but  this  order  was  reversed  at  general  term. 
The  plaintiffs  demand  equitable  relief  in  the    action    to   the   effect, 
substantially,  that  the  defendants  be  required  and  compelled  by  tlie 
judgment  of  the  court  to  receive  and  transport  for  the  plaintiffs  their 


382  LOUGH   V.    OUTEEBRIDGE. 

freight  at  the  special  reduced  rates,  when  allowed  to  all  other  ship- 
pers, without  imposing  the  couditiou  that  the  plaintiffs  stipulate  to 
ship  during  the  times  specified  by  the  defendants'  line  exclusively. 

Whether  the  regular  rate  of  40  cents,  for  which  it  is  conceded  that 
the  defendants  offered  to  carry  for  the  plaintiffs  at  all  times  without 
conditions,  was  or  was  not  reasonable,  was  a  question  of  fact  to  be 
determined  upon  the  evidence  at  the  trial;  and  the  learned  trial  judge 
has  found  as  matter  of  fact  that  it  was  reasonable,  and  that  the  re- 
duced rate  of  25  cents  granted  to  shippers  on  special  occasions,  and 
upon  the  conditions  and  requirements  mentioned,  was  not  profitable. 
This  finding,  which  stands  unquestioned  upon  the  record,  seems  to 
me  to  be  an  element  of  great  importance  in  the  case,  which  must  be 
recognized  at  every  stage  of  the  investigation.  A  common  carrier  is 
subject  to  an  action  at  law  for  damages  in  case  of  refusal  to  perform 
its  duties  to  the  public  for  a  reasonable  compensation,  or  to  recover 
back  tlie  money  paid  when  the  charge  is  excessive.  This  right  to 
maintain  an  action  at  law  upon  the  facts  alleged,  it  is  urged  by  the 
learned  counsel  for  the  defendants,  precludes  the  plaintiffs  from  main- 
taining a  suit  for  equitable  relief  such  as  is  demanded  in  the  com- 
plaint. There  is  authority  in  other  jurisdictions  to  sustain  the 
practice  adopted  by  the  plaintiffs  (Watson  v.  Sutherland,  5  Wall.  74; 
Menacho  v.  Ward,  27  Fed.  529 ;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  u. 
Pennsylvania  Co.,  54  Fed.  741;  Coe  &  Milsom  v.  Railroad  Co.,  3 
Fed.  775;  Vincent  v.  Railroad  Co.,  49  111.  33;  Scofield  v.  Railroad 
Co.,  43  Ohio  St.  571),  though  I  am  not  aware  of  any  in  this  State  that 
would  bring  a  case  based  upon  such  facts  within  the  usual  or  ordinary 
jurisdiction  of  equity.  So  far  as  this  case  is  concerned,  it  is  sufficient 
to  observe  that  it  is  now  settled  by  a  very  general  concurrence  of 
authority  that  a  defendant  cannot,  when  sued  in  equity,  avail  himself 
of  the  defence  that  an  adequate  remedy  at  law  exists,  unless  he  pleads 
that  defence  in  his  answer.  Cogswell  v.  Railroad  Co.,  105  N.  Y. 
319;  Town  of  Mentz  v.  Cook,  108  N.  Y.  504;  Ostrander  v.  W^eber, 
114  N.  Y.  95;  Dudley  v.  Congregation,  138  N.  Y.  460;  Truscott  v. 
King,  6  N.  Y.  147. 

When  the  facts  alleged  are  sufficient  to  entitle  the  plaintiff  to  relief 
in  some  form  of  action,  and  no  objection  has  been  made  by  the  de- 
fendant to  the  form  of  the  action  in  his  answer  or  at  the  trial,  it  is 
too  late  to  raise  the  point  after  judgment  or  upon  appeal.  So  that, 
whatever  objections  might  have  been  urged  originally  against  the 
action  in  its  present  form,  the  defendants  must  now  be  deemed  to  have 
waived  them.  This  court  will  not  now  stop  to  examine  a  minor 
question  that  does  not  touch  the  merits,  but  relates  wholly  to  the  form 
in  which  the  plaintiffs  have  presented  the  facts  and  demanded  relief, 
or  to  the  practice  and  procedure.  The  time  and  place  to  raise  and 
discuss  these  questions  was  at  or  before  the  trial,  and,  as  they  were 
not  then  raised,  the  case  must  be  examined  and  disposed  of  upon  the 
merits.     The  defendants  were   engaged  iu  a  business  in  which  the 


LOUGH   V.   OUTEEBRIDGE.  383 

public  were  interested,  aud  the  duties  aud  obligations  growing  out 
of  it  may  be  enforced  through  the  courts  and  the  legislative  power. 
Munn  V.  Illinois,  94  U.  S.  113;  People  v.  Budd,  117  N.  Y.  1.  In 
England  these  duties  are,  to  a  great  extent,  regulated  by  the  railway 
^and  canal  traffic  act  (17  &  18  Vict.,  c.  31),  and  by  statute  in  some  of 
the  States,  aud  in  this  country,  so  far  as  they  enter  into  the  busiiiess 
of  interstate  commerce,  by  act  of  Congress.  The  solution  of  the  ques- 
tion now  presented  depends  upon  the  general  principles  of  the  common 
law,  as  there  is  no  statute  in  this  State  that  affects  the  question,  and 
the  legislation  referred  to  is  important  only  for  the  purpose  of  in- 
dicating the  extent  to  which  business  of  this  character  has  been  sub- 
jected to  public  regulation  for  the  general  good.  There  can  be  no 
doubt  that  at  common  law  a  common  carrier  undertook  generally,  aud 
not  as  a  casual  occupation,  to  convey  and  deliver  goods  for  a  reason- 
able compensation  as  a  business,  with  or  without  a  special  agreement, 
and  for  all  people  indifferently;  and,  in  the  absence  of  a  special 
agreement,  he  was  bound  to  treat  all  alike  in  the  sense  that  he  was 
not  permitted  to  charge  any  one  an  excessive  price  for  the  services. 
He  has  no  right  in  any  case  while  engaged  in  this  public  employmeut 
to  exact  from  any  one  anything  beyond  what  under  the  circum- 
stances is  reasonable  aud  just.  2  Kent,  Comm.  (13th  ed.)  598;  Story, 
Bailm.  §§  495,  508;  2  Pars.  Cont.  175;  Killmer  v.  Railroad  Co  ,  100 
N.  Y.  395;  Root  v.  Railroad  Co.  114  N.  Y.  300.  It  may  also  be  con- 
ceded that  the  carrier  cannot  unreasonably  or  unjustly  discriminate 
in  favor  of  oue  or  against  another  where  the  circumstances  and 
conditions  are  the  same.  The  question  in  this  case  is  whether  the 
defendants,  upon  the  undisputed  facts  contained  in  the  record,  have 
discharged  these  obligations  to  the  plaintiffs.  There  was  no  refusal 
to  carry  for  a  reasonable  compensation.  On  the  contrary,  the  defend- 
ants offered  to  transport  the  goods  for  the  40  cents  rate,  and  we  are 
concluded  by  the  finding  as  to  the  reasonable  nature  of  that  charge. 
The  defendants  even  offered  to  carry  them  at  the  unprofitable  rate  of 
25  cents,  providing  the  plaintiffs  would  comply  with  the  same  condi- 
tions upon  which  the  goods  of  auy  other  person  were  carried  at  that 
rate.  What  is  reasonable  and  just  in  a  common  carrier  in  a  given 
case  is  a  complex  question,  into  which  enter  many  elements  for  con- 
sideration. The  questions  of  time,  place,  distance,  facilities,  quan- 
tit}^  and  character  of  the  goods,  and  many  other  matters  must  be 
considered.  The  carrier  can  afford  to  carry  10,000  tons  of  coal  and 
other  property  to  a  given  place  for  less  compensation  per  ton  than 
he  could  carry  50;  and,  where  the  business  is  of  great  magnitude,  a 
rebate  from  the  standard  rate  might  be  just  and  reasonable,  while  it 
could  not  fairly  be  granted  to  another  who  desired  to  have  a  trifling 
amount  of  goods  carried  to  the  same  point.  So  long  as  the  regular 
standard  rates  maintained  by  the  carrier  and  offered  to  all  are  reason- 
able, one  shipper  cannot  complain  because  his  neighbor,  by  reason  of 
special  circumstances  and  conditionti,  can  make  it  an  object  for  the 


384  LOUGH   V.   OUTERBEIDGE. 

carrier  to  give  him  reduced  rates.  In  this  case  the  finding  implies 
that  the  defendants  at  certain  times  carried  goods  at  a  loss,  upon  the 
condition  that  the  shippers  gave  them  all  of  their  business.  What- 
ever eilect  may  be  given  to  the  legislation  referred  to,  in  its  applica- 
tion to  railroads  and  other  corporations  deriving  their  powers  and 
franchises  from  the  State,  there  can  be  no  doubt  that  the  carrier  could 
at  common  law  make  a  discount  from  its  reasonable  general  rates  in 
favor  of  a  particular  customer  or  class  of  customers  in  isolated 
cases,  for  special  reasons,  and  upon  special  conditions,  without 
violating  any  of  the  duties  or  obligations  to  the  public  inherent  in 
the  employment.  If  the  general  rates  are  reasonable,  a  deviation 
from  the  standard  by  the  carrier  in  favor  of  particular  customers,  for 
special  reasons  not  applicable  to  the  whole  public,  does  not  furnish  to 
parties  not  similarly  situated  any  just  ground  for  complaint.  When 
the  conditions  and  circumstances  are  identical,  the  charges  to  all 
shippers  for  the  same  service  must  be  equal.  These  principles  are 
well  settled,  and  whatever  may  be  found  to  the  contrary  in  the  cases 
cited  by  the  learned  counsel  for  the  plaintiff  originated  in  the  appli- 
cation of  statutory  regulations  in  other  States  and  countries.  Kail- 
road  Co.  V.  Gage,  12  Gray,  393;  Sargent  v.  Railroad  Co.,  115  Mass. 
422;  Steamship  Co.  v.  McGregor,  21  Q.  B.  Div.  544,  affirmed  23 
Q.  B.  Div.  598,  and  by  H.  L.  17  App.  Cas.  25;  Evershed  v.  Railway 
Co.,  3  Q.  B.  Div.  135;  Baxendale  v.  Railroad  Co.,  4  C.  B.  (N.  S.) 
78;  Branley  v.  Railroad  Co.,  12  C.  B.  (N.  S.)  74. 

Special  favors  in  the  form  of  reduced  rates  to  particular  customers 
may  form  an  element  in  the  inquiry  whether,  as  matter  of  fact,  the 
standard  rates  are  reasonable  or  otherwise.  If  they  are  extended  to 
such  persons  at  the  expense  of  the  general  public,  the  fact  must  be 
taken  into  account  in  ascertaining  whether  a  given  tariff  of  general 
prices  is  or  is  not  reasonable.  But,  as  in  this  case  the  reasonable 
nature  of  the  price  for  which  the  defendants  offered  to  carry  the 
plaintiffs'  goods  has  been  settled  by  the  findings  of  the  trial  court, 
it  will  not  be  profitable  to  consider  further  the  propriety  or  effect  of 
such  discrimination.  The  rule  of  the  common  law  was  thus  broadly 
stated  by  the  Supreme  Court  of  Massachusetts  in  the  case  of  Railroad 
Co.  V.  Gage,  sujjra.  Upon  that  point  the  court  said:  "The  recent 
English  cases,  cited  by  the  counsel  for  the  defendants,  are  chiefly 
commentaries  upon  the  special  legislation  of  Parliament  regulating 
the  transportation  of  freight  on  railroads  constructed  under  the 
authority  of  the  government  there,  and  consequently  throw  very  little 
light  upon  questions  concerning  the  general  rights  and  duties  of  com- 
mon carriers,  and  are  for  that  reason  not  to  be  regarded  as  author- 
itative expositions  of  the  common  law  upon  these  subjects.  The 
principle  derived  from  that  source  is  very  simple.  It  requires  equal 
justice  to  all.  But  the  equality  which  is  to  be  observed  consists  in 
the  restricted  right  to  charge  a  reasonable  compensation,  and  no 
more.     If  the  carrier  confines  himself  to  thjs,  no  wrong  can  be  done. 


LOUGH    V.    OUTERBRIDGE.  3S5 

If,  for  special  reosons  in  isolated  cases,  the  carrier  sees  fit  to  stipu- 
late for  the  carriage  of  goods  of  auy  class  for  individuals,  for  a 
certain  time,  or  in  certain  quantities,  for  a  less  compensation  than 
what  is  the  usual,  necessary,  and  reasonable  rate,  he  ma}'  undoubt- 
edly do  so  without  entitling  all  parties  to  the  same  advantage."  In 
Evershed  v.  Railway  Co.,  siqjra^  Lord  Bramwell  remarked:  "I  am 
not  going  to  lay  down  a  precise  rule,  but,  speaking  generally,  and 
subject  to  qualification,  it  is  open  to  a  railway  company  to  make  a 
bargain  with  a  person,  provided  they  are  v\-illing  to  make  the  same 
bargain  with  any  other,  though  that  other  may  not  be  in  a  situation 
to  make  it.  An  obvious  illustration  may  be  found  in  season  tickets." 
The  authorities  cited  seem  to  me  to  remove  all  doubt  as  to  the  right 
of  a  carrier,  by  special  agreement,  to  give  reduced  rates  to  customers 
who  stipulate  to  give  them  all  their  business,  and  to  refuse  these  rates 
to  others  who  are  not  able  or  willing  to  so  stipulate,  providing, 
always,  that  the  charge  exacted  from  such  parties  for  the  service  is 
not  excessive  or  unreasonable.  The  principle  of  equality  to  all,  so 
earnestly  contended  for  by  the  learned  counsel  for  the  plaintiffs,  was 
not,  therefore,  violated  by  the  defendants,  since  they  were  willing  and 
offered  to  carry  the  plaintiffs'  goods  at  the  reduced  rate,  upon  the 
same  terms  and  conditions  that  these  rates  were  granted  to  others; 
and,  if  the  plaintiffs  were  unable  to  get  the  benefit  of  such  rate,  it 
was  because,  for  some  reason,  they  were  unable  or  unwilling  to  comply 
with  the  conditions  upon  which  it  was  given  to  their  neighbors,  and 
not  because  the  carrier  disregarded  his  duties  or  obligations  to  the 
public.  The  case  of  Menacho  v.  Ward,  27  Fed.  529,  does  not  apply, 
because  the  facts  were  radicall}'  different.  That  action  was  to  restrain 
the  carrier  from  exacting  unreasonable  charges  habitually  for  ser- 
vices, the  charges  having  been  advanced  as  to  the  parties  complaining, 
for  the  reason  that  they  had  at  times  employed  another  line.  It  de- 
cides nothing  contrary  to  the  general  views  here  stated.  On  the  con- 
trary, the  court  expi'essly  recognized  th§  general  rule  of  the  common 
law  with  respect  to  the  obligations  and  duties  of  the  carrier  substan- 
tially as  it  is  herein  expressed,  as  will  be  seen  from  the  following 
paragraph  in  the  opinion  of  Judge  Wallace:  "Unquestionably,  a 
common  carrier  is  always  entitled  to  a  reasonable  compensation  for 
his  services.  Hence  it  follows  that  he  is  not  required  to  treat  all 
those  who  patronize  him  with  absolute  equality.  It  is  his  privilege  to 
charge  less  than  a  fair  compensation  to  one  person,  or  to  a  class  of 
persons,  and  others  cannot  justly  complain  so  long  as  he  carries  on 
reasonable  terms  for  them.  Respecting  preference  in  rates  of  com- 
pensation, his  obligation  is  to  charge  no  more  than  a  fair  return  in 
each  particular  transaction,  and,  except  as  thus  restricted,  he  is  free 
to  discriminate  at  pleasure.  This  is  the  equal  justice  to  all  which 
the  law  exacts  from  the  common  carrier  in  his  relations  with  the 
public." 
But  it  is  urged  that  the  plaintiffs  were  in  fact  the  only  shippers  of 

23 


3S6  LOUGH    V.    OUTEEBRIDGE. 

goods  from  New  York  to  Barbadoes  by  the  El  Callao,  and  therefore 
the  condition  imposed  that  the  reduced  rate  should  be  granted  only 
to  such  merchants  as  stipulated  to  give  the  defendants  their  entire 
business,  while  in  terms  imposed  upon  the  public  generall}-,  was  in 
fact  aimed  at  the  plaintiffs  alone.  The  trial  court  refused  to  find  this 
fact,  but,  assuming  that  it  appeared  from  the  undisputed  evidence, 
I  am  unable  to  see  how  it  could  affect  the  result.  The  significance 
which  the  learned  counsel  for  the  plaintiffs  seems  to  give  to  it  in  his 
argument  is  that  it  conclusively  shows  the  purpose  of  the  defendants 
to  compel  the  plaintiffs  to  withdraw  their  patronage  from  the  other 
line,  to  suppress  competition  in  the  business,  and  to  retain  a  monopoly 
for  their  own  benefit.  Conceding  that  such  was  the  purpose,  it  is  not 
apparent  how  any  obligation  that  the  defendants  owed  to  the  public 
was  disregarded.  We  have  seen  that  the  defendants  might  lawfully 
give  reduced  rates  in  special  cases,  and  refuse  them  in  others,  where 
the  conditions  are  different,  or  to  the  general  public,  where  the  regular 
rates  are  reasonable.  The  purpose  of  an  act  which  in  itself  is  per- 
fectly lawful,  or,  under  all  the  circumstances,  reasonable,  is  seldom, 
if  ever,  material.  Phelps  v.  Nowlen,  72  N.  Y.  39;  Kiff  v.  Youmans, 
86  N.  Y.  324.  The  mere  fact  that  the  transportation  business  be- 
tween the  two  points  in  question  was  in  the  hands  of  the  defendants 
did  not  necessarily  create  a  monopoly,  if  the  general  rates  maintained 
were  reasonable  and  just.  It  is  not  pretended  that  the  owners  of  the 
El  Callao  proposed  to  give  regular  service  to  the  general  public  for 
any  less.  When  the  service  is  performed  for  a  reasonable  and  just 
hire,  the  public  have  no  interest  in  the  question  whether  one  or  many 
are  engaged  in  it.  The  monopoly  which  the  law  views  with  disfavor 
is  the  manipulation  of  a  business  in  which  the  public  are  interested 
in  such  a  way  as  to  enable  one  or  a  few  to  control  and  regulate  it  in 
their  own  interest,  and  to  the  detriment  of  the  public,  by  exacting 
unreasonable  charges.  But  when  an  individual  or  a  corporation  has 
established  a  business  of  a  special  and  limited  character,  such  as  the 
defendants  in  this  case  had,  they  have  a  right  to  retain  it  by  the  use 
of  all  lawful  means.  That  was  what  the  defendants  attempted  to  do 
against  a  competitor  that  engaged  in  it,  not  regularly  or  permanently, 
but  incidentally  and  occasionally.  The  means  adopted  for  this  pur- 
pose was  to  offer  the  service  to  the  public  at  a  loss  to  themselves 
whenever  the  competition  was  to  be  met,  and,  when  it  disappeared,  to 
resume  the  standard  rates,  which,  upon  the  record,  did  not  at  any  time 
exceed  a  reasonable  and  fair  charge.  I  cannot  perceive  anything 
unlawful  or  against  the  public  good  in  seeking  by  such  means  to  retain 
a  business  which  it  does  not  appear  was  of  sufficient  magnitude  to 
furnish  employment  for  both  lines.  On  this  branch  of  the  argument 
the  remarks  of  Lord  Coleridge  in  the  case  of  Steamship  Co.  v. 
McGregor,  siqyra,  are  applicable:  "The  defendants  are  traders,  with 
enormous  sums  of  money  embarked  in  their  adventure,  and  naturally 
and  allowably  desire  to  reap  a  profit  from  their  trade.     They  have  a 


LOUGH   V.    OUTERBRIDGE.  387 

right  to  push  their  lawful  trades  by  all  lawful  means.  The}'  have  a 
right  to  endeavor,  by  lawful  means,  to  keep  their  trade  in  their  own 
hands,  and  by  the  same  means  to  exclude  others  from  its  benefits,  if 
they  can.  Amongst  lawful  means  is  certainly  included  the  inducing, 
by  profitable  offers,  customers  to  deal  with  them,  rather  than  with 
their  rivals.  It  follows  that  they  may,  if  they  see  fit,  endeavor  to  in- 
duce customers  to  deal  with  them  exclusively  by  giving  notice  that 
only  to  exclusive  customers  will  they  give  the  advantage  of  their 
profitable  offers.  I  do  not  think  it  matters  that  the  withdrawal  of  the 
advantages  is  out  of  all  proportion  to  the  injury  inflicted  by  those 
who  withdraw  them  on  the  customers  who  decline  to  deal  exclusively 
with  them  dealing  with  other  traders."  The  courts,  I  admit,  should 
do  nothing  to  lessen  or  weaken  the  restraints  which  the  law  imposes 
upon  the  carrier,  or  in  any  degree  to  impair  his  obligation  to  serve  all 
persons  indifferently  in  his  calling,  in  the  absence  of  a  reasonable 
excuse,  and  for  a  reasonable  compensation  only;  but  to  hold,  as  we 
are  asked  to  in  this  case,  that  the  plaintiffs  were  entitled  to  have  their 
goods  carried  by  the  defendants  at  an  unprofitable  rate,  without  com- 
pliance with  the  conditions  upon  which  it  was  granted  to  all  others, 
and  which  constituted  the  motive  and  inducement  for  the  offer,  would 
be  extending  these  obligations  beyond  the  scope  of  any  established 
precedent  based  upon  the  doctrine  of  the  common  law,  and  would,  I 
think,  be  contrary  to  reason  and  justice. 

The   judgment  of   the  court  below  dismissing  the  complaint  was 
right,  and  should  be  affirmed,  with  costs. 

Finch,  Gray,  and  Bartlett,  JJ.,  concur.     Peckham,  J.,  dissents. 

Andrews,  C.  J.,  not  sitting. 

Judgment  affirmed. 


388  DITTMAK    V.    NEW    BRAUNFELS. 

DITTMAR  V.  NEW   BRAUNFELS. 

Court  of  Civil  Appeals,  Texas,  1899. 

[20  Texas   Civil  Appeals,  293.] 

Fisher,  C.  J.  Appellant,  Dittmar,  brought  this  suit,  in  the  nature 
of  an  injunction,  to  restrain  the  city  of  New  Braunfels  from  interfering 
Avith  his  use  of  water  from  the  water  S3'stem  of  New  Braunfels  for 
domestic  purposes,  and  to  require  the  city  to  restore  him  to  his  riglits 
us  a  consumer  of  water  under  a  contract  existing  between  him  and  the 
cit}',  and  to  connect  his  residence  with  the  water  mains  of  the  city, 
after  the  city  authorities  operating  the  waterworks,  without  his  con- 
sent, had  disconnected  his  residence  from  the  water  sj'stem,  and  cut 
off  his  supply  of  water.  There  is  also  a  claim  of  damages  claimed  to 
have  resulted  by  reason  of  the  wrongful  interference  of  the  city  with 
his  rights  in  the  use  of  water.  A  temporar}'  injunction  was  granted, 
but,  upon  final  hearing,  general  and  special  demurrers  were  addressed 
to  the  petition,  which  were  sustained,  and  the  case  dismissed,  from 
"which  judgment  the  appellant  has  appealed. 

Without  stating  in  full  the  language  of  plaintiff's  petition,  the  cause 
of  action,  as  there  set  out,  is  substantially  as  follows:  The  cit^'  of  New 
Braunfels  is  incorporated  under  the  general  laws  of  this  State,  and 
plaintiff  is  a  resident  and  taxpayer  thereof,  occupying,  with  his  famil}', 
a  residence  within  the  limits  of  the  city.  The  city  has  in  operation, 
and  has  had  for  several  3'ears  past,  a  permanent  and  adequate  sa's- 
tem  of  waterworks,  which  is  carried  on  and  conducted  by  the  city 
for  the  purpose  of  supplying  the  inhabitants  water  for  public  and 
private  use.  There  is  an  abundant  supply  of  pure  and  wholesome 
water,  which  the  cit}',  by  the  exercise  of  reasonable  diligence  in  tlie 
operation  of  its  waterworks,  can  continuously  furnish  the  plaintiff  and 
the  other  inhabitants  of  the  city.  This  water  is  used  for  fire  protec- 
tion and  for  doaiestic  purposes  b}'  the  inhabitants,  and  there  is  not, 
within  the  cit}-,  any  other  source  from  which  the  inhabitants  can  oli- 
tain  a  sutflcient  and  wliolesome  supph'  of  water.  In  November,  1895, 
the  appellant  entered  into  a  contract  with  the  cit}',  whereby  it  agreed 
to  furnish  him  water  at  his  residence,  for  household  purposes,  at  tlie 
rate  of  one  dollar  a  month,  payal)le  quarterly  in  advance.  In  pursu- 
ance of  that  contract,  at  considerable  expense  to  the  plaintiff,  the 
amount  of  which  is  set  out  in  the  petition,  the  plaintiff's  residence  was 
connected  with  the  water  system  operated  by  the  city,  and  he,  from 
that  time,  had  promptly  paid  the  water  rates  due  from  him,  and  has 
complied  with  all  reasonal)le  regulations  made  by  the  city  for  the  con- 
sumption and  use  of  water;  and  if  an}-  water  rent,  upon  the  trial  of 
the  case,  was  found  to  be  due,  he  was  read}'  and  willing  to  pay  the 
same,  and  had  tendered  to  the  defendant  all  amounts  due  it  for  the 
use  of  water.  In  pursuance  of  said  contract,  he  continued  to  use 
the  water  for  household  purpose*:,  at   his  residence,  until  IMay,  1898, 


DiTTMAR  V.  :new  buaunfels.  389 

wlien  the  defendant,  through  its  servants  operating  the  water  system, 
wrongfully,  without  his  consent,  cut  off  the  sui)i)ly  of  water  from  his 
residence  ;  and  thereupon  he  demanded  of  the  defendant  that  he  be 
again  connected  with  the  water  system,  and  restored  to  his  rights  as 
a  consumer,  and  tendered  to  the  defendant  the  sum  of  $12,  all  of 
which  the  defendant  refused  to  do.  In  1897  the  city  passed  an  ordi- 
nance requiring  consumers  of  water  for  household  purposes  to  enter 
into  a  contract,  which  is  styled  in  the  petition  as  ' '  Exhibit  A,"  as  fol- 
lows :  "$12.00.  (Ord.  Se"c.  26.)  New  Braunfels,  Texas,  1897.  The 
cil}-  of  New  Braunfels  is  requested  to  connect  my  propert}'  known  and 
described  as  lots  Nos.  9  and  10,  on  Acadeui}'  Street,  Jahn's  addition, 
in  ward  No.  4,  New  Braunfels,  Texas,  with  the  waterworks  system  of 
said  city.  The  water  is  wanted  and  applied  and  subscribed  for  under 
conditions,  and  for  the  purposes  and  uses,  following:  Household.  It 
is  especially  agreed  and  understood,  and  made  a  part  of  the  consider- 
ation of  this  contract,  that  the  city  of  New  Braunfels  is  in  no  manner 
to  be  held  liable  for  any  scarcity  or  failure  of  water,  nor  for  the  quality 
or  quantit}'  thereof,  nor  for  any  failure  to  supply  water  in  the  event  of 
fire  on  the  premises,  or  other  casualt}-  or  happening.  This  order  is  given 
and  signed  freeh',  with  the  understanding  and  acquiescence  of  the  terms 
and  conditions  above,  and  with  the  knowledge  and  the  understand- 
ing that,  if  a  contract  is  desired  not  containing  such  a  waiver,  a  higher 
rate  would  be  demanded  by  the  city,  and  with  the  full  knowledge  and 
acquiescence  of  the  ordinance  of  the  said  city  exempting  it  from  lia- 
bility in  the  event  of  failure  or  scarcity  of  water,  either  for  fire  or 
domestic  purposes.  This  contract  is  continuous,  and  the  subscriber  is 
aware  of  the  condition  that,  should  he  desire  to  have  the  same  altered, 
abated,  or  cancelled,  notice  must  be  given  to  the  city  of  New  Braun- 
fels at  least  thirt}'  days  beforehand  ;  otherwise  this  contract  is  to  remain 
in  full  force.  But  nothing  herein  shall  be  construed  to  prevent  the  city 
from  cutting  off  the  supply  without  notice  or  liability  for  damage  of  any 
kind,  in  the  event  the  rate  herein  called  for  and  specified  is  not 
promptly  paid  when  due." 

And  at  the  same  time  the  city  passed  the  following  ordinances,  which 
are  known  as  sections  27  and  29  : 

"Section  27.  An}' person,  corporation,  or  firm  desiring  a  contract 
or  form  differing  in  its  conditions  from  the  order  given  in  section  26 
hereof,  may,  by  application  in  writing  to  the  city  council  of  New  Braun- 
fels, Texas,  have  a  special  contract  granted  him  (or  it)  at  the  rate  to 
be  fixed  by  such  council,  upon  the  granting  of  such  application,  which 
rale  sliall  not  be  less  than  double  the  amount  of  the  charges  in  the 
ordinances  set  out,  except  for  good  reasons  to  the  contrary,  shown  to 
the  city  council." 

"  Section  29.  No  connections  shall  be  made  nor  shall  an}-  water 
be  furnished  or  supplied,  unless  the  owner  of  the  property  to  be  so 
connected  or  supplied  make  his  application  therefor  in  writing  ami 
form  following,  to  wit:     [Here   follows  the  form  Exhibit  A,  leaving 


390  DITTMAR   V.    NEW   BEAUNFELS. 

blank  the  name,  lot,  street,  &c.,  so  as  to  constitute  a  printed  blank 
form.]  " 

This  ordinance,  as  stated  in  section  27,  was  intended  to  give  those 
inhabitants  the  right  to  a  supph-  of  water  who  refused  to  sign  and  en- 
ter into  the  contract  set  out  in  Exhibit  A.  The  plaintiff  refused  to 
sign  the  contract  as  previously  set  out,  or  any  of  the  contracts  re- 
quired by  the  ordinance  as  stated  in  section  27,  and  for  tliis  reason, 
solely,  the  citj'  disconnected  him  from  the  water  system,  and  refused 
further  to  continue  furnishing  him  a  supply  of  water  under  the  contract 
that  he  had  previoush'  entered  into  with  the  city  in  1895.  It  is  also 
averred  that  it  cost  the  city  no  more  to  furnish  plaintiff  a  supply  of 
water  for  household  purposes  than  it  does  other  inhabitants  of  the 
city  ;  that  it  is  furnishing  other  inhabitants  for  household  purposes  a 
supply  of  water  at  the  same  rate  that  it  agreed  to  furnish  the  plaiutitf 
under  the  contract  of  1895.  In  other  words,  that  there  are  no  dis- 
similar conditions  existing  between  the  plaintiff  and  the  other  inhabi- 
tants with  reference  to  the  cost  and  expense  of  furnishing  water,  and 
tliat  the  cit}'  is  continuing  to  furnish  other  inhabitants  an  adequate  and 
w'holesome  supply  of  water  for  household  purposes  at  the  rate  of  one 
dollar  per  month.  The  contention  of  the  appellant  is  that  the  contract 
as  stated  in  Exhibit  A,  and  the  ordinance  upon  which  it  is  based,  are 
unreasonable,  and  therefore  void,  and  that  for  his  refusal  to  enter  into 
a  contract  of  that  nature  the  city  arbitrarily,  and  without  legal  rea- 
son, cut  off  his  supplv  of  water  and  disconnected  him  from  the  sj'stem  ; 
that  his  rights  as  a  consumer  were  fixed  under  the  contract  that  he 
had  entered  into  in  1895,  which  could  not  be  disturbed,  except  for 
reasonable  rules  and  regulations,  which  it  is  not  questioned  the  cit}' 
had  the  right  to  make,  regarding  the  use  and  consumption  of  water. 
This  court  has  previously  held  in  the  case  of  Lenzen  v.  City  of  New 
Braunfels,  which  will  be  found  reported  in  35  S.  W.  341,  that  a  cit}' 
who  by  contract  owes  a  dut}'  to  a  consumer  will  be  required  to  exer- 
cise ordinary  care  in  furnishing  and  supplying  him  with  the  use  of 
■water.  And  the  averments  of  the  petition,  in  terms,  state  that  the 
purpose  of  passing  the  ordinances  which  are  here  assailed  was  to  evade 
the  decision  of  this  court  in  the  Lenzen  Case ;  and  tiie  averments  of 
the  petition,  together  with  the  terms  of  the  contract  as  set  out  in  Ex- 
hibit A,  impress  us  with  the  belief  that  such  was,  in  part,  the  purpose 
of  the  council  of  the  city  in  passing  the  ordinances,  and  requiring 
consumers  to  enter  into  contracts  of  the  character  set  out  in  the 
exhibit. 

A  city  has  the  power  to  require  consumers  to  enter  into  contracts 
obligating  them  to  comply  with  the  reasonable  rules  and  regulations 
which  may  be  imposed  for  the  operation  and  protection  of  the  water 
S3-stem  and  for  the  use  of  the  water ;  but,  as  a  prerequisite  to  fur- 
nishing a  consumer  a  supply  of  water,  the  city  has  no  power  to  require 
him  to  enter  into  an  agreement  absolving  the  city  from  the  duties  im- 
posed upon  it  by  the  law  and  release  it  from  liability  for  its  own  negli- 


DITTMAR   V.    NEW   BRAUNFELS.  391 

gence.  The  contract  in  question,  which  the  plaintiff  was  required  to 
sign,  releases  the  city  from  liability  for  any  scarcity  or  failure  of  sup- 
ply of  water,  or  for  the  quality  thereof,  or  for  any  failure  to  supply 
water  in  the  event  of  a  fire  or  other  casualt}'  or  happening,  and  it 
expressh'  exempts  it  from  liability  for  failure  or  scarcity  of  water  for 
fire  or  domestic  purposes.  It  is  averred  in  the  petition  that  the  sources 
from  which  the  city  obtained  its  water  will  furnish  au  unlimited  supply 
of  a  wholesome  quality,  if  the  citv  should  conduct  its  works  with  due 
care  with  reference  to  its  obligation  to  the  consumers.  This  contract, 
in  terms,  releases  the  cit}'  from  its  obligation  to  furnish  water  of  good 
qualit}'  and  sufficient  quantity,  and  for  a  failure  to  supply  water  in  the 
event  of  a  fire  on  the  premises  or  other  casualty  or  happening.  In 
otlior  words,  the  purpose  of  these  stipulations  in  this  contract  seems  to 
be  that,  for  any  failure  or  refusal  to  furnish  water  to  a  consumer,  either 
with  reference  to  its  quality  or  quantit}-,  the  cit}-  should  be  released 
from  liabilit}'.  We  are  clearly  of  the  opinion,  in  view  of  the  duty  that 
the  cit}'  owes  to  its  consumers  of  water,  that  the  imposition  of  a  con- 
tract of  this  nature  would  be  unreasonable,  and  therefore  void.  It  is 
probably  true,  if  a  consumer  had  entered  into  a  contract  of  this  nature 
and  the  city  had  undertaken  under  it  to  supplv  him  with  water,  but  had 
violated  its  dut}-  and  obligations  resting  upon  it  to  furnish  him  an  ade- 
quate and  wholesome  supply  of  water  when  it  had  in  its  power  to  do 
so,  that  the  consumer  could  have,  nevertheless,  held  it  liable  for  the 
damages  he  had  sustained ;  for,  although  the  consumer  ma}'  have 
agreed  to  releajse  the  cit}',  still,  in  urging  his  rights  in  an  action  against 
it,  a  court  would  not  have  enforced  those  provisions  of  the  contract 
which  were  unreasonable,  in  that  they  released  the  cit}'  from  its  own 
negligence.  While  it  is  true  that  no  obligation  would  have  been  created 
against  a  consumer  by  reason  of  such  unreasonable  terms  in  a  contract 
of  this  nature,  still  the  city  has  no  right  to  require  him  to  sign  and 
execute  a  contract  of  this  character  as  a  prequisite  to  his  right  to  the 
use  and  consumption  of  water,  and,  upon  failure  to  comply  with  this 
unreasonable  request,  to  cut  off  the  supph'  which  he  was  entitled  to  by 
reason  of  his  previous  contract. 

It  is  next  contended  that  as  the  ordinance  upon  which  this  contract 
is  based,  together  with  a  contract  of  this  nature,  are  void  as  being  un- 
reasonable, the  city  could  not  require  him,  as  a  condition  for  the  use  of 
water,  to  enter  into  a  contract  of  a  nature  called  for  b}'  section  27  of 
the  ordinances.  We  clearly  think  the  plaintiff  is  also  correct  in  this 
contention.  It  is  averred  in  the  petition  that  the  other  inhabitants  of 
the  city  are  enjoying  the  privilege  of  the  use  of  water  under  a  similar 
rate  as  that  given  to  the  plaintiff  in  the  contract  of  1895,  and  that  the 
situation  and  condition  of  these  people  is  similar  to  that  of  the  plain- 
tiff. Upon  the  refusal  of  the  plaintiff  to  sign  the  contract,  as  stated  in 
Exhibit  A,  the  city  had  no  authority,  under  the  averments  of  the  peti- 
tion, to  require  him  to  enter  into  a  contract  such  as  is  required  in  sec- 
tion 27  of  the  ordinances  j  for  a  contract  as  required  by  that  ordinance 


302      INTEESTATE   COMMERCE   COMMISSION'   V.   BALT.    &   OHIO   R, 

would  place  a  greater  burden  upon  the  plaintiff,  in  requiring  him  to 
pay  a  greater  price  for  the  consumption  of  water  for  the  same  purpose 
than  that  for  which  it  was  furnished  the  other  inhabitants  of  the  city. 
A  city  has  the  power  and  right  to  prescribe  reasonable  charges  for  the 
use  of  water  it  furnishes  to  consumers,  but  it  has  no  power  to  discrimi- 
nate between  the  inhabitants  of  the  cit\'  in  its  charges  for  the  use  of 
water,  when  the}'  occupj-  a  similar  situation. 

Meversed  and  remanded. 


INTERSTATE   COMMERCE  COMMISSION  v.  BALTIMORE  & 
OHIO    RAILROAD. 

Supreme  Court  of  the  United  States,  1892. 

[145  U.  S.  263.] 

This  proceeding  was  originally  instituted  by  the  filing  of  a  peti- 
tion before  the  Interstate  Commerce  Commission  by  the  Pittsburg, 
Cincinnati,  &  St.  Louis  Railway  Company  against  the  Baltimore  & 
Ohio  Railroad  Company,  to  compel  the  latter  to  withdraw  from  its 
lines  of  road,  upon  which  business  competitive  with  that  of  the  peti- 
tioner was  transacted,  the  so-called  "party  rates,"  and  to  decline  to 
give  such  rates  in  future  upon  such  lines  of  road;  also  for  an 
order  requiring  said  company  to  discontinue  the  practice  of  selling 
excursion  tickets  at  less  than  the  regular  rate,  unless  such  rates  were 
posted  in  its  offices,  as  required  by  law.  The  petition  set  foi'th 
that  the  two  roads  were  competitors  from  Pittsburg  westward ;  that 
the  Baltimore  &  Ohio  road  had  in  operation  upon  its  competing  lines 
of  road  so-called  "party  rates,"  whereby  "parties  of  ten  or  more 
persons  travelling  together  on  one  ticket  will  be  transported  over 
said  lines  of  road  between  stations  located  thereon  at  two  cents  per 
mile  2:)er  cajiita,  which  is  less  than  the  rate  for  a  single  person;  said 
rate  for  a  single  person  being  about  three  cents  per  mile.  "^   .   .   . 

The  cause  was  heard  before  the  commission,  which  found  "that 
so-called  'party  rate'  tickets,  sold  at  reduced  rates,  and  entitling  a 
number  of  persons  to  travel  together  on  a  single  ticket  or  otherwise, 
are  not  commutation  tickets,  within  the  meaning  of  section  22  of  the 
act  to  regulate  commerce,"^  and  that,  when  the  rates  at  which  such 
tickets  for  parties  are  sold  are  lower  for  each  member  of  the  party 
than  rates  contemporaneously  charged  for  the  transportation  of 
single  passengers  between  the  same  points,  they  constitute  unjust 
discrimination,  and  are  therefore  illegal."  It  was  ordered  and 
adjudged  "that  the  defendant,  the  Baltimore  &  Ohio  Railroad  Com- 
pany, do  forthwith  wholly  and  immediately  cease   and  desist  from 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 

2  Act  of  Feb.  4,  1887  ;  24  St.  379. 


INTERSTATE   COMMERCE   COMMISSION   V.   BALT.   &   OHIO   E.      393 

charging  rates  for  the  transportation  over  its  lines  of  a  number 
of  persons  travelling  together  in  one  party  -which  are  less  for  each 
person  than  rates  contemporaneously  charged  by  said  defendant 
under  schedules  lawfully  in  effect  for  the  transportation  of  single 
passengers  between  the  same  points." 

The  defendant  road  having  refused  to  obey  this  mandate,  the  com- 
mission, on  May  1,  1890,  pursuant  to  section  16  of  the  Interstate 
Commerce  Act,  filed  this  bill  in  the  Circuit  Court  of  tlie  United 
States  for  the  Southern  District  of  Ohio  for  a  writ  of  injunction  to 
restrain  the  defendant  from  continuing  in  its  violation  of  the  order 
of  the  commission.    .   .   . 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

Prior  to  the  enactment  of  the  act  of  February  4,  1887,  to  regulate 
commerce,  commonly  known  as  the  "Interstate  Commerce  Act"  (24 
St.  379),  railway  tratfic  in  this  country  was  regulated  by  the  princi- 
ples of  the  common  law  applicable  to  common  carriers,  which  de- 
manded little  more  than  that  they  should  carry  for  all  persons  who 
applied,  in  the  order  in  which  the  goods  were  delivered  at  the  partic- 
ular station,  and  that  their  charges  for  transportation  should  be 
reasonable.  It  was  even  doubted  whether  they  were  bound  to  make 
the  same  charge  to  all  persons  for  the  same  service;  Fitchburg 
Railroad  Co.  v.  Gage,  12  Gray,  393;  Baxendale  f.  Eastern  Counties 
Railway  Co.,  4  C.  B.  (N.  S.)  63;  Great  Western  Railway  Co.  v. 
Sutton,  L.  R.  4  H.  L.  226,  237;  Ex  parte  Benson,  18  S.  C.  38; 
Johnson  v.  Pensacola  Railwa}'  Co.,  16  Fla.  623;  though  the  weight 
of  authority  in  this  country  was  in  favor  of  an  equality  of  charge  to 
all  persons  for  similar  services.  In  several  of  the  States  acts  had 
been  passed  with  the  design  of  securing  the  public  against  unreason- 
able and  unjust  discriminations;  but  the  inefficacy  of  these  laws 
beyond  the  lines  of  the  State,  the  impossibility  of  securing  concerted 
action  between  the  legislatures  toward  the  regulation  of  traffic  be- 
tween the  several  States,  and  the  evils  which  grew  up  under  a  policy 
of  unrestricted  competition,  suggested  the  necessity  of  legislation 
by  Congress  under  its  constitutional  power  to  regulate  commerce 
among  the  several  States.  These  evils  ordinarily  took  the  shape  of 
inequality  of  charges  made,  or  of  facilities  furnished,  and  were 
usually  dictated  by  or  tolerated  for  the  promotion  of  the  interests  of 
the  officers  of  the  corporation  or  of  the  corporation  itself,  or  for  the 
benefit  of  some  favored  persons  at  the  expense  of  others,  or  of  some 
particular  locality  or  community,  or  of  some  local  trade  or  commer- 
cial connection,  or  for  the  destruction  or  crippling  of  some  rival 
or  hostile  line. 

The  principal  objects  of  the  Interstate  Commerce  Act  were  to 
secure  just  and  reasonable  charges  for  transportation ;  to  prohibit 
unjust  discriminations  in  the  rendition  of  like  services  under  similar 
circumstances  and  conditions;  to  prevent  undue  or  unreasonable 
preferences  to  persons,  corporations,  or  localities ;  to  inhibit  greater 


894     INTERSTATE    COMMERCE    COMMISSION    V.    BALT.    &   OHIO   E. 

compensation  for  a  shorter  than  for  a  longer  distance  over  the  same 
line;  and  to  abolish  combinations  for  the  pooling  of  freights.  It  was 
not  designed,  however,  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fares  in  consideration  of  increased  mile- 
age, where  such  reduction  did  not  operate  as  an  unjust  discrimina- 
tion against  other  persons  travelling  over  the  road.  In  other  words, 
it  was  not  intended  to  ignore  the  principle  that  one  can  sell  at  whole- 
sale cheaper  than  at  retail.  It  is  not  all  discriminations  or  preferences 
that  fall  within  the  inhibition  of  the  statute,  — onl}^  such  as  are  unjust 
or  unreasonable.  For  instance,  it  would  be  obviously  unjust  to 
charge  A.  a  greater  sum  than  B.  for  a  single  trip  from  Washington  to 
Pittsburg;  but,  if  A.  agrees  not  only  to  go,  but  to  return  by  the 
same  route,  it  is  no  injustice  to  B.  to  permit  him  to  do  so  for  a 
reduced  fare,  since  the  services  are  not  alike,  nor  the  circumstances 
and  conditions  substantially  similar,  as  required  by  section  2  to 
make  an  unjust  discrimination.  Indeed,  the  possibility  of  just 
discriminations  and  reasonable  preferences  is  recognized  by  these 
sections,  in  declaring  what  shall  be  deemed  unjust.  We  agree, 
however,  with  the  plaintiff  in  its  contention  that  a  charge  may  be 
perfectly  reasonable  under  section  1,  and  yet  may  create  an  unjust 
discrimination  or  an  unreasonable  preference  under  sections  2  and  3. 
As  was  said  by  Mr.  Justice  Blackburn  in  Great  Western  Railway 
Co.  V.  Sutton,  L.  R.  4  H.  L.  226,  239;  "When  it  is  sought  to  show 
that  the  charge  is  extortionate,  as  being  contrary  to  the  statutable 
obligation  to  charge  equally,  it  is  immaterial  whether  the  charge 
is  reasonable  or  not;  it  is  enough  to  show  that  the  company  carried 
for  some  other  person  or  class  of  persons  at  a  lower  charge  during 
the  period  throughout  which  the  party  complaining  was  charged 
more  under  the  like  circumstances." 

The  question  involved  in  this  ease  is  whether  the  principle  above 
stated,  as  applicable  to  two  individuals,  applies  to  the  purchase  of 
a  single  ticket  covering  the  transportation  of  10  or  more  persons  from 
one  place  to  another.  These  are  technically  known  as  "part}'  rate 
tickets,"  and  are  issued  principally  to  theatrical  and  operatic  com- 
panies for  the  transportation  of  their  troupes.  Such  ticket  is  clearly 
neither  a  "mileage  "  nor  an  "excursion  "  ticket  within  the  exception 
of  section  22;  and  upon  the  testimony  in  this  case  it  may  be  doubt- 
ful whether  it  falls  within  the  definition  of  "commutation  tickets," 
as  those  words  are  commonly  understood  among  railway  officials. 
The  words  "commutation  ticket"  seem  to  have  no  definite  meaning. 
They  are  defined  by  Webster  (edition  of  1891)  as  "a  ticket,  as 
for  transportation,  which  is  the  evidence  of  a  contract  for  service  at 
a  reduced  rate."  If  this  definition  be  applicable  here,  then  it  is  clear 
that  it  would  include  a  party  rate  ticket.  In  the  language  of  the 
railway,  however,  they  are  principally,  if  not  wholl}',  used  to  desig- 
nate tickets  for  transportation  during  a  limited  time  between  neigh- 


INTEESTATE    COMMERCE   COMMISSION   V.    BALT.    &    OHIO   R.      395 

boring  towns,  or  cities  and  suburban  towns.  The  party  rate  ticket 
upon  the  defendant's  road  is  a  single  ticket,  issued  to  a  part}'  of  10 
or  more,  at  a  fixed  rate  of  2  cents  per  mile,  or  a  discount  of  one  third 
from  the  regular  passenger  rate.  The  reduction  is  not  made  by  way 
of  a  secret  rebate  or  drawback,  but  the  rates  are  scheduled,  posted, 
and  open  to  the  public  at  large. 

But,  assuming  the  weight  of  evidence  in  this  case  to  be  that  the 
party  rate  ticket  is  not  a  "commutation  ticket."  as  that  word  was 
commonly  understood  at  the  time  of  the  passage  of  the  act,  but  is  a 
distinct   class    by    itself,   it   does    not   necessarily  follow    that   such 
tickets  are  unlawful.     The  unlawfulness  defined  by  sections  2  and  3 
consists  either  in  an  "  unjust  discrimination"  or  an  "undue  or  un- 
reasonable preference  or  advantage,"  and  the  object  of  section  22  was 
to  settle,  beyond  all  doubt,  that  the  discrimination  in  favor  of  cer- 
tain persons  therein  named  should  not  be  deemed  unjust.     It  does 
not  follow,  however,  that  there  may  not  be  other  classes  of  persons 
in  whose  favor  a  discrimination  may  be  made  without  such  disciim- 
ination  being  unjust.     In  other  words,  this  section  is  rather  illustra- 
tive than  exclusive.     Indeed,  many,  if  not  all,  the  excepted  classes 
named  in  section  22  are  those  which,  in  the  absence  of  this  section, 
would  not  necessarily  be  held  the  subjects  of  an  unjust  discrimina- 
tion, if  more  favorable  terms  were  extended  to  them  than  to  ordinary 
passengers.     Such,  for  instance,  are  property  of  the  United  States, 
State,   or  municipal    governments;    destitute   and   homeless   persons 
transported  free  of  charge  by  charitable  societies ;  indigent  persons 
transported  at  the  expense  of   municipal   governments;    inmates  of 
soldiers'  homes,  etc.,  and  ministers  of  religion,  —  in  favor  of  whom  a 
reduction  of  rates  had  been  made  for  many  years  before  the  passage 
of  the  act.     It  may  even  admit  of  serious  doubt  whether,  if  the  mile- 
age, excursion,  or  commutation  tickets  had  not  been  mentioned  at  all 
in  this  section,   they  would   have    fallen  within    the    prohibition  of 
sections  2  and  3;  in  other  words,  whether  the  allowance  of  a  reduced 
rate  to  persons  agreeing  to  travel  1,000  miles,  or  to  go  and  return  by 
the  same  road,  is  a  "like  and  contemporaneous    service  under  sub- 
stantially similar  conditions  and  circumstances  "  as  is  rendered  to  a 
person  who  travels  upon  an  ordinary  single  trip  ticket.     If  it  be  so, 
then,  under  State  laws  forbidding  unjust  discriminations,  every  such 
ticket  issued  between  points  within  the  same  State  must  be  illegal. 
In  view  of  the  fact,  however,  that  every  railway  company  issues  such 
tickets;    that   there  is  no  reported    case.   State  or  federal,    wherein 
their  illegality  has  been  questioned ;  that  there  is  no  such  case  in  Eng- 
land;   and    that   the   practice    is    universally  acquiesced    in   by   the 
public,  —  it  would  seem  that  the  issuing  of  such  tickets  should  not  be 
held  an  unjust  discrimination  or  an  unreasonable  preference  to  the 
persons  travelling  upon  them. 

But,    whether   these   party   rate   tickets   are   commutation    tickets 
proper,  as   known   to   railway  officials,  or   not,    they  are   obviously 


896      INTERSTATE    COMMERCE    COMMISSION    V.    BALT.    &   OHIO   R. 

within  the  commuting  principle.  As  stated  in  the  opinion  of  Judge 
Sage  in  the  court  below:  "The  difference  between  commutation  and 
party  rate  tickets  is  that  commutation  tickets  are  issued  to  induce 
people  to  travel  more  frequently,  and  party  rate  tickets  are  issued  to 
induce  more  people  to  travel.  There  is,  however,  no  difference  iu 
principle  between  them,  the  object  in  both  cases  being  to  increase 
travel  without  unjust  discrimination,  and  to  secure  patronage  that 
would  not  otherwise  be  secured." 

The  testimony  indicates  that  for  many  years  before  the  passage  of 
the  act  it  was  customary  for  railroads  to  issue  tickets  at  reduced  rates 
to  passengers  making  frequent  trips,  — trips  for  long  distances,  and 
trips  in  parties  of  10  or  more,  lower  than  the  regular  single  fare 
charged  between  the  same  points;  and  such  lower  rates  were  uni\er- 
sally  made  at  the  date  of  the  passage  of  the  act.  As  stated  in  the 
answer,  to  meet  the  needs  of  the  commercial  traveller,  the  1,000-mile 
ticket  was  issued;  to  meet  the  needs  of  the  suburban  resident  or 
frequent  traveller,  several  forms  of  tickets  were  issued.  For  exam- 
ple, monthly  or  quarterly  tickets,  good  for  any  number  of  trips  within 
the  specified  time;  and  10,  25,  or  50  trip  tickets,  good  for  a  specified 
number  of  trips  by  one  person,  or  for  one  trip  by  a  specified  number 
of  persons;  to  accommodate  parties  of  10  or  more,  a  single  ticket, 
one  way  or  round  trip,  for  the  whole  party,  was  made  up  by  the  agent 
on  a  skeleton  form  furnished  for  that  purpose ;  to  accommodate  excur- 
sionists travelling  in  parties  too  large  to  use  a  single  ticket,  special 
individual  tickets  were  issued  to  each  person.  Tickets  good  for  a 
specified  number  of  trips  were  also  issued  between  cities  where  travel 
was  frequent.  In  short,  it  was  an  established  principle  of  the  busi- 
ness that  whenever  the  amount  of  travel  more  than  made  up  to  the 
carrier  for  the  reduction  of  the  charge  per  capita,  then  such  reduction 
was  reasonable  and  just  in  the  interests  both  of  the  carrier  and  of 
the  public.  Although  the  fact  that  j-ailroads  had  long  been  in  the 
habit  of  issuing  these  tickets  would  be  by  no  means  conclusive  evi- 
dence that  they  were  legal,  since  the  main  purpose  of  the  act  was  to 
put  an  end  to  certain  abuses  which  had  crept  into  the  management 
of  railroads,  yet  Congress  may  be  presumed  to  have  had  those  prac- 
tices in  view,  and  not  to  have  designed  to  interfere  with  them,  except 
so  far  as  they  were  unreasonable  in  themselves,  or  unjust  to  others. 
These  tickets,  then,  being  within  the  commutation  principle  of 
allowing  reduced  rates  in  consideration  of  increased  mileage,  the 
real  question  is  whether  this  operates  as  an  undue  or  unreasonable 
preference  or  advantage  to  this  particular  description  of  traffic,  or  an 
unjust  discrimination  against  others.  If,  for  example,  a  railway 
makes  to  the  public,  generally,  a  certain  rate  of  freight,  and  to  a 
particular  individual  residing  in  the  same  town  a  reduced  rate  for 
the  same  class  of  goods,  this  may  o{)erate  as  an  undue  preference, 
since  it  enables  the  favored  party  to  sell  his  goods  at  a  lower  price 
than  his  competitors,  and  ma}'  even  enable  him  to  obtain  a  complete 


INTERSTATE   COMMERCE    COMMISSION    V.    BALT.    &    OHIO   R.       397 

monopoly  of  that  business.  Even  if  the  same  reduced  rate  be  allowed 
to  every  one  doing  the  same  amount  of  business,  such  discrimination 
may,  if  carried  too  far,  operate  unjustly  upon  the  smaller  dealers 
engaged  in  the  same  busin,ess  and  enable  the  larger  ones  to  drive 
them  out  of  the  market. 

The  same  result,  however,  does  not  follow  from  the  sale  of  a  ticket 
for  a  number  of  passengeis  at  a  less  rate  than  for  a  single  passenger; 
it  does  not  operate  to  the  prejudice  of  the  single  passenger,  who 
cannot  be  said  to  be  injured  by  the  fact  that  another  is  able,  in  a  par- 
ticular instance,  to  travel  at  a  less  rate  than  he.  If  it  operates  injuri- 
ously towards  any  one  it  is  the  rival  road,  which  has  not  adopted 
corresponding  rates;  but,  as  before  observed,  it  was  not  the  design  of 
the  act  to  stifle  competition,  nor  is  there  any  legal  injustice  in  one 
person  procuring  a  particular  service  cheaper  than  another.  If  it  be 
lawful  to  issue  these  tickets,  then  the  Pittsburg,  Chicago,  &  St. 
Louis  Railway  Company  has  the  same  right  to  issue  them  that  the 
defendant  has,  and  may  compete  with  it  for  the  same  tratfic;  but  it 
is  unsound  to  argue  that  it  is  unlawful  to  issue  them  because  it  has 
not  seen  fit  to  do  so.  Certainly  its  construction  of  the  law  is  not 
binding  upon  this  court.  The  evidence  shows  that  the  amount  of 
business  done  by  means  of  these  party  rate  tickets  is  very  large;  that 
theatrical  and  operatic  companies  base  their  calculation  of  profits  to 
a  certain  extent  upon  the  reduced  rates  allowed  by  railroads;  and 
that  the  attendance  at  conventions,  political  and  religious,  social 
and  scientific,  is,  in  a  great  measure,  determined  by  the  ability  of 
the  delegates  to  go  and  come  at  a  reduced  charge.  If  these  tickets 
were  withdrawn,  the  defendant  road  would  lose  a  large  amount  of 
travel,  and  the  single  trip  passenger  would  gain  absolutely  nothing. 
If  a  case  were  presented  where  a  railroad  refused  an  application  for  a 
party  rate  ticket  upon  the  ground  that  it  was  not  intended  for  the 
use  of  the  general  public,  but  solely  for  theatrical  troupes,  there 
would  be  much  greater  reason  for  holding  that  the  latter  were  favored 
with  an  undue  preference  or  advantage. 

In  order  to  constitute  an  unjust  discrimination  under  section  2  the 
carrier  must  charge  or  receive  directly  from  one  person  a  greater  or 
less  compensation  than  from  another,  or  must  accomplish  the  same 
thing  indirectly  by  means  of  a  special  rate,  rebate,  or  other  device; 
but,  in  either  case,  it  must  be  for  a  "like  and  contemporaneous  ser- 
vice in  the  transportation  of  a  like  kind  of  traffic,  under  substantially 
similar  circumstances  and  conditions."  To  bring  the  present  case 
within  the  words  of  this  section,  we  must  assume  that  the  transporta- 
tion of  10  persons  on  a  single  ticket  is  substantially  identical  with 
the  transportation  of  one,  and,  in  view  of  the  universally  accepted 
fact  that  a  man  may  buy,  contract,  or  manufacture  on  a  large  scale 
cheaper  proportionately  than  upon  a  small  scale,  this  is  impossible. 

In  this  connection  we  quote  with  approval  from  the  opinion  of 
Judge  Jackson  in  the  court  below:  "To  come  within  the  inhibition 


398      IIsTERSTATE    COM.MEKCE    COMMISSION    V.    BALT.    &    OHIO   R. 

of  said  sections,  the  differences  must  be  made  under  like  conditions; 
that  is,  there  must  be  contemporaneous  service  in  the  transportation 
of  like  kinds  of  traffic  under  substantially  the  same  circumstances 
and  conditions.  In  respect  to  passenger  traffic,  the  positions  of  the 
respective  persons  or  classes  between  whom  differences  in  charges  are 
made  must  be  compared  with  each  other,  and  there  must  be  found  to 
exist  substantial  identity  of  situation  and  of  service,  accompanied  by 
irregularity  and  partiality  resulting  in  undue  advantage  to  one,  or 
undue  disadvantage  to  the  other,  in  order  to  constitute  unjust 
discrimination." 

The  English  Traffic  Act  of  1854  contains  a  clause  similar  to  sec- 
tion 3  of  the  Interstate  Commerce  Act,  that  "no  such  company  shall 
make  or  give  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,  nor  shall  any  such 
company  subject  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage in  any  respect  whatsoever." 

In  Hozier  v.  Caledonian  Railroad  Co.,  17  Sess.  Cas.  (D)  302,  1 
Nev.  &  McN.  27,  complaint  was  made  by  one  who  had  frequent 
occasion  to  travel,  that  passengers  from  an  intermediate  station  be- 
tween Glasgow  and  Edinburgh  were  charged  much  greater  rates  to 
those  places  than  were  charged  to  other  through  passengers  between 
these  termini;  but  the  Scotch  Court  of  Session  held  that  the  peti- 
tioner had  not  shown  an}'  title  or  interest  to  maintain  the  proceeding; 
his  only  complaint  being  that  be  did  not  choose  that  parties  travelling 
from  Edinburgh  to  Glasgow  should  enjoy  the  benefit  of  a  cheaper 
rate  of  travel  than  he  himself  could  enjoy.  "  It  provides,"  said  the 
court,  "  for  giving  undue  preference  to  parties  /mi'l  passu  in  the 
matter,  but  you  must  bring  them  into  competition  in  order  to  give 
them  an  interest  to  complain."  This  is  in  substance  holding  that 
the  allowance  of  a  reduced  through  rate  worked  no  injustice  to 
passengers  living  on  the  line  of  the  road,  who  were  obliged  to  pay 
at  a  greater  rate.  So  in  Jones  v.  Eastern  Counties  Railway  Co.,  3 
C.  B.  (N.  S.)  718,  the  court  refused  an  injunction  to  compel  a  railway 
company  to  issue  season  tickets  between  Colchester  and  London 
upon  the  same  terms  as  they  issued  them  between  Harwich  and 
London,  upon  the  mere  suggestion  that  the  granting  of  the  latter,  the 
distance  being  considerably  greater,  at  a  much  lower  rate  than  the 
former,  was  an  undue  and  unreasonable  preference  of  the  inhabitants 
of  Harwich  over  those  of  Colchester.  Upon  the  other  hand,  in  Ran- 
some  V.  Eastern  Counties  Railway  Co.,  1  C.  B.  (N.  S.)  437,  where  it 
was  manifest  that  a  railway  company  charged  Ipswich  merchants, 
who  sent  from  thence  coal  which  had  come  thither  by  sea,  a  higher 
rate  for  the  carriage  of  their  coal  than  it  charged  Peterboro  mer- 
chants, who  had  made  arrangements  with  it  to  carry  large  quantities 
over  its  lines,  and  that  the  sums  chai'ged  the  Peterboro  merchants  were 


INTERSTATE   COMMEECE   COMMISSION   l\   BALT.   &   OHIO   R.      399 

fixed  so  as  to  enable  them  to  compete  with  the  Ipswich  merchants, 
the  court  granted  an  injunction,  upon  the  ground  of  an  undue 
preference  to  the  Peterboro  merchants,  the  object  of  the  discrimina- 
tion being  to  benefit  the  one  dealer  at  the  expense  of  the  other,  by 
depriving  the  latter  of  the  natural  advantages  of  his  position.  In 
Oxlade  v.  Northeastern  Railway  Co.,  1  C.  B.  (N.  S.)  454,  a  railway 
company  was  held  justified  in  carrying  goods  for  one  person  for  a 
less  rate  than  that  at  which  they  carried  the  same  description  of  goods 
for  another,  if  there  be  circumstances  which  render  the  cost  of  carry- 
ing the  goods  for  the  former  less  than  the  cost  of  carrying  them  for 
the  latter,  but  that  a  desire  to  introduce  northern  coke  into  a  certain 
district  was  not  a  legitimate  ground  for  making  special  agreements 
with  different  merchants  for  the  carriage  of  coal  and  coke  at  a  rate 
lower  than  the  ordinary  charge,  there  being  nothing  to  show  that  the 
pecuniary  interests  of  the  company  were  affected;  and  that  this  was 
an  undue  preference. 

In  short,  the  substance  of  all  these  decisions  is  that  railway  com- 
panies are  only  bound  to  give  the  same  terms  to  all  persons  alike 
under  the  same  conditions  and  circumstances,  and  that  any  fact 
which  produces  an  inequality  of  condition  and  a  change  of  circum- 
stances justifies  an  inequality  of  charge.  These  traffic  acts  do  not 
appear  to  be  as  comprehensive  as  our  own,  and  may  justify  contracts 
which  with  us  would  be  obnoxious  to  the  long  and  short  haul  clause 
of  the  act,  or  would  be  open  to  the  charge  of  unjust  discrimination. 
But,  so  far  as  relates  to  the  question  of  "  undue  preference,"  it  may 
be  presumed  that  Congress,  in  adopting  the  language  of  the  English 
act,  had  in  mind  the  construction  given  to  these  words  by  the  Eng- 
lish courts,  and  intended  to  incorporate  them  into  the  statute. 
McDonald  v.  Hovey,  110  U.  S.  619. 

There  is  nothing  in  the  objection  that  party  rate  tickets  afford 
facilities  for  speculation,  and  that  they  would  be  used  by  ticket 
brokers  or  "  scalpers "  for  the  purpose  of  evading  the  law.  The 
party  rate  ticket,  as  it  appears  in  this  case,  is  a  single  ticket  cover- 
ing the  transportation  of  10  or  more  persons,  and  would  be  much  less 
available  in  the  hands  of  a  ticket  broker  than  an  ordinary  single 
ticket,  since  it  could  only  be  disposed  of  to  a  person  who  would  be 
willing  to  pay  two  thirds  of  the  regular  fare  for  that  number  of 
people.  It  is  possible  to  conceive  that  party  rate  tickets  may,  by  a 
reduction  of  the  number  for  whom  they  may  be  issued,  be  made  the 
pretext  for  evading  the  law,  and  for  the  purpose  of  cutting  rates; 
but  should  such  be  the  case,  the  courts  would  have  no  difficulty  in 
discovering  the  purpose  for  which  they  were  issued,  and  applying  the 
proper  remedy. 

Upon  the  whole,  we  are  of  the  opinion  that  party  rate  tickets,  as 
used  by  the  defendant,  are  not  open  to  the  objections  found  by  the 
Interstate  Commerce  Commission,  and  are  not  in  violation  of  the  act 
to  regulate  commerce,  and  the  decree  of  the  court  below  is  therefore 

Affo-mvd. 


400  STATE    V.   CINCINNATI,   NEW   ORLEANS,    ETC.    RAILWAY. 


STATE  V.    CINCINNATI,   NEW   ORLEANS,   AND  TEXAS 
PACIFIC    RAILWAY    CO. 

SuPEEME  Court  of  Ohio,   1890. 

[47  Ohio  St.  130.1] 

Bradbury,  J.  .  .  .  The  petitions  charge,  among  other  things,  that 
the  defendants  misused  their  corporate  powers  and  franchises  by  dis- 
criminating in  their  rates  of  freight  in  favor  of  certain  refiners  of 
petroleum  oil  connected  witli  the  Standard  Oil  Company,  by  charging 
other  shippers  of  like  products  unreasonable  rates,  by  arbitrarily  and 
suddenly  changing  the  same,  and,  finally,  by  confederating  witli  tlie 
favored  shippers  to  create  and  foster  a  monopoly  in  refined  oil,  to  the 
injur}'  of  other  refiners  and  the  public  ;  and,  further,  that  the  defend- 
ants claimed  and  exercised,  in  contravention  of  law,  the  right  to 
charge,  for  shipping  oil  in  tank-cars,  a  lower  rate  of  freight  per  100 
pounds  than  they  charged  for  shipping  tlie  same  in  barrels,  in  carload 
lots.  The  defendants,  by  answer,  among  other  matters,  denied  charg- 
ing any  shippers  unreasonable  rates  of  freight,  or  that  they  arbitrarily 
or  suddenly  changed  such  rates,  and  denied  any  confederacy  with  an}' 
one  to  establish  a  monopoly.  The  actions  were  referred  to  a  referee, 
to  take  the  evidence,  and  to  report  to  this  court  his  findings  of  fact  and 
conclusions  of  law  therefrom,  —  all  which  has  been  done;  and  the 
cases  are  before  us  upon  this  report.  .   .   . 

That  the  Cincinnati,  Washington  &  Baltimore  Railway  Company  did 
discriminate  in  its  rates  for  freight  on  petroleum  oil  in  favor  of  the 
Camden  Consolidated  Oil  Company,  and  that  the  Cincinnati,  New 
Orleans  &  Texas  Pacific  Railway  Company  did  the  same  in  favor  of 
the  Chess-Carly  Company,  is  shown  bj-  the  finding  of  the  referee, 
which  is  clearly  sustained  by  the  evidence.  That  these  discriminating 
rates  were  in  some  instances  strikingly  excessive,  tended  to  foster  a 
monopoly,  tended  to  injure  the  competitors  of  the  favored  shippers, 
and  were  in  man}-  instances  prohibitory,  actually  excluding  these  com- 
petitors from  extensive  and  valuable  markets  for  their  oil,  giving  to 
the  favored  shippers  absolute  control  tliereof,  is  established  beyond 
any  serious  controvers}-.  The  justification  interposed  is  that  this  was 
not  done  pursuant  to  any  confederacy  with  the  favored  shipper,  or  with 
any  purpose  to  inflict  injury  on  their  competitors,  but  in  order  that  the 
railroad  companies  miglit  secure  freight  that  would  otherwise  have 
been  lost  to  them.  This  we  do  not  think  sufficient.  We  are  not  un- 
mindful of  the  difficulties  that  stand  in  the  way  of  prescribing  a  line  of 
duty  to  a  railway  company,  nor  do  we  undertake  to  say  they  may  not 
pursue  their  legitimate  objects,  and  shape  their  policy  to  secure  bene- 
fits to  themselves,  though  it  may  press  severely  upon  the  interests  of 

1  This  case  is  abridged.  — Ed. 


STATE   V.    CINCINX.VTI,   NEW    ORLEANS,   ETC.    EAILWAY.  401 

others  ;  but  we  do  hold  that  they  cannot  be  permitted  to  foster  or 
create  a  monopoly,  by  giving  to  a  favored  shipper  a  discriminating 
rate  of  freight.  As  common  carriers,  their  duty  is  to  carry  inditfer- 
ently  for  all  who  may  apply,  and  in  the  order  in  which  the  application 
is  made,  and  upon  the  same  terms;  and  the  assumption  of  a  right  to 
make  discriminations  in  rates  for  freight,  sucrh  as  was  claimed  and 
exercised  Ijy  the  defendants  in  this  case,  on  the  ground  that  it  thereby 
secured  freight  that  it  would  otherwise  lose,  is  a  misuse  of  the  rights 
and  privileges  conferred  upon  it  by  law.  A  full  and  complete  discus- 
sion of  the  principles,  and  a  thorough  collation  of  the  authorities,  bear- 
ing upon  the  duties  of  railroad  companies  towards  their  customers,  is 
to  be  found  in  the  opinion  of  Judge  Atherton,  in  the  case  of  Scofield 
V.  Railwa}'  Co.,  43  Ohio  St.  571,  to  which  nothing  need  be  now  added. 
It  appears  that,  of  the  two  methods  of  shipping  oil,  —  that  by  the 
barrel,  in  carload  lots,  and  that  in  tank-cars,  —  the  first  only  was 
available  to  George  Rice,  and  the  other  refiners  of  petroleum  oil  at 
Marietta,  Ohio,  as  they  owned  no  tank-cars,  nor  did  the  defendants 
own  or  undertake  to  provide  an}- ;  but  that  both  methods  were  open  to 
the  Camden  Consolidated  Oil  Company  and  the  Chess-Carlv  Compan\-, 
by  reason  of  their  ownership  of  tank-cars,  and  that  the  rate  per  barrel 
in  tank-cars  was  very  much  lower  than  in  barrel  packages,  in  box-cars  ; 
that  in  fact  the  Cincinnati,  Washington  &  Baltimore  Railway  Com- 
pany, after  allowing  the  Camden  Consolidated  Oil  Company  a  rebate, 
and  allowing  the  Baltimore  &  Ohio  Railway  Companj-  for  switching 
cars,  received  from  the  Camden  Consolidated  Oil  Company  only  about 
one-half  the  open  rates  it  charged  the  Marietta  refiners,  and  that  both 
railroad  companies  claimed  the  right  to  make  different  rates,  based 
upon  the  different  methods  of  shipping  oil,  and  the  fact  of  the  owner- 
ship by  shippers  of  the  tank-cars  used  by  them.  It  was  the  duty  of 
the  defendants  to  furnish  suitable  vehicles  for  transporting  freight 
offered  to  them  for  that  purpose,  and  to  offer  equal  terms  to  all 
shippers.  A  railroad  is  an  improved  highway.  Tlie  public  are  equally 
entitled  to  its  use.  It  must  provide  equal  accommodation  for  all, 
upon  the  same  terms.  The  fact  that  one  shipper  ma}'  be  provided  with 
vehicles  of  his  own  entitles  him  to  no  advantage  over  his  competitor  not 
so  provided.  The  true  rule  is  announced  by  the  interstate  commerce 
commission  in  the  report  of  the  case  of  Rice  v.  Railroad  Co.  "The 
fact  that  the  owner  supplies  the  rolling  stock  when  his  oil  is  shipped  in 
tanks,  in  our  opinion,  is  entitled  to  little  weight,  when  rates  are  under 
consideration.  It  is  properly  the  business  of  railroad  companies  to 
supply  to  their  customers  suitable  vehicles  of  transportation  (Railroad 
Co.  V.  Pratt,  22  Wall.  123)  and  then  to  offer  their  use  to  everybody, 
impartially."  1  Int.  St.  Com.  R.  547.  No  doubt,  a  shipper  who  owns 
cars  may  be  paid  a  reasonable  compensation  for  their  use,  so  that  the 
compensation  is  not  made  a  cover  for  discriminating  rates,  or  other 
advantages  to  such  owner  as  a  shipper.  Nor  is  there  any  valid  objec- 
tion to  such  owner  using  them  exclusively,  as   long  as   the  carrier 


402  STATE   V.   CINCINNATI,    NEW   ORLEANS,   ETC.    EAILWAY. 

provides  equal  accommodations  to  its  otlier  customers.  It  may  be 
claimed  that  if  a  railroad  company  permit  all  shippers,  indifferently 
and  upon  equal  terms,  to  provide  cars  suitable  for  their  business,  and 
to  use  them  exclusively,  no  discrimination  is  made.  This  may  be 
theoretically  true,  but  is  not  so  in  its  application  to  the  actual  state  of 
the  business  of  the  country  ;  for  a  very  large  proportion  of  the  cus- 
tomers of  a  railroad  have  not  a  volume  of  business  large  enough  to 
warrant  equipping  themselves  with  cars,  and  might  be  put  at  a  ruinous 
disadvantage  in  the  attempt  to  compete  with  more  extensive  establish- 
ments. Aside  from  this,  however,  a  shipper  is  not  bound  to  provide  a 
car.  The  duty  of  providing  suitable  facilities  for  its  customers  rests 
upon  the  railroad  compan}-;  and  if,  instead  of  providing  sufficient  and 
suitable  cars  itself,  this  is  done  by  certain  of  its  customers,  even  for 
their  own  convenience,  yet  the  cars  thus  provided  are  to  be  regarded 
as  part  of  the  equipment  of  the  road.  It  being  the  duty  of  a  railroad 
company  to  transport  freight  for  all  persons,  indifferently,  and  in  the 
order  in  which  its  transportation  is  applied  for,  it  cannot  be  permitted 
to  suffer  freight  cars  to  be  placed  upon  its  track  by  any  customer  for 
his  private  use,  except  upon  the  condition  that,  if  it  does  not  provide 
other  cars  sufficient  to  transport  the  freight  of  other  customers  in  the 
order  that  application  is  made,  the\'  ma}'  be  used  for  that  purpose. 
Were  this  not  so,  a  mode  of  discrimination  fatal  to  all  successful  com- 
petition by  small  establishments  and  operators  with  larger  and  more 
opulent  ones  could  be  successfully  adopted  and  practised  at  the  will  of 
the  railroad  companj-,  and  the  favored  shipper. 

The  advantages,  if  any,  to  the  carrier,  presented  by  the  tank-car 
method  of  transporting  oil  over  that  by  barrels,  in  box-cars,  in  car- 
load lots,  are  not  sufficient  to  justify  any  substantial  difference  in  tlie 
rate  of  freight  for  oil  transported  in  that  way  ;  but  if  there  were  any 
such  advantages,  as  it  is  the  dutv  of  the  carrier  to  furnish  proper 
vehicles  for  transporting  it,  if  it  failed  in  this  dut}',  it  could  not,  in 
justice,  avail  itself  of  its  own  neglect  as  a  ground  of  discrimination. 
It  must  either  provide  tank-cars  for  all  of  its  customers  alike,  or  give 
such  rates  of  freight  in  barrel  packages,  by  the  carload,  as  will  place 
its  customers  using  that  method  on  an  equal  footing  with  its  customers 
adopting  the  other  method.  Jxidgment  ousting  defendants  from  the 
right  to  make  or  charge  a  rate  of  freight  per  100  pounds  for  transport- 
ing oil  in  iron  tank-cars,  substantially  lower  than  for  transporting  it  in 
barrels,  in  carload  lots.^ 

1  Compare:  Arkansas  R.  R.  v.  Smith,  .53  Ark.  275;  Cowden  v.  S.  S.  Co.,  94  Cal. 
470  ;  Johnson  v.  K.  R.,  16  Fla.  623  ;  Louisville  R.  R.  v.  Wilson,  132  Ind.  .517  ;  Chicago 
R.  R.  V.  P.,  67  111.  11  ;  Cook  v.  Chicago  R.  R.,  81  la.  531 ;  Sloau  v.  R.  R.,  61  Mo.  21  ; 
Ragau  V.  Arken,  77  Tenn.  609.  —  Ed. 


GRIFFIN    V.    GOLDSBORO    WATER   CO.  403 


GRIFFIN   V.  GOLDSBORO    WATER   CO. 
SuPKEME  Court  of  North  Carolina,  1898. 

[112  N.  C.  206.] 

Civil  action  for  an  injunction,  pending  in  Wayne  Superior  Court  and 
heard  before  Timberlake,  J.,  at  Chambers  on  19th  April,  1898,  on  a 
motion  to  dissolve  a  restraining  order  thereto  issued.  His  Honor  con- 
tinued the  injunction  to  the  hearing  and  defendant  appealed. 

Clark,  J.  The  defendant  corporation  is  the  owner  of  a  plant  which 
supplies  water  to  Goldsboro  and  its  inhabitants  under  a  franchise 
grantetl  by  the  city.  It  has  no  competition.  The  complaint  alleges 
that  to  prevent  competition  the  defendant  reduced  its  rates  largely  to 
certain  parties  w'ho  threatened  to  establish  a  rival  company,  but  not 
only  did  not  make  a  corresponding  reduction  to  the  plaintiffs  and 
other  customers  but  proposes  to  put  in  meters  whereby  the  rates  to 
plaintiffs  and  others  will  be  greatl}-  increased,  and  threatens  to  cut  off 
tlie  water  supply  of  the  plaintiffs  if  they  do  not  pay  the  increased  rates, 
which  will  be  to  their  great  injury  ;  that  the  rates  charged  by  the  cor- 
poration are  not  uniform  and  those  charged  the  plaintiffs  are  unjust 
and  unreasonable.  The  defendant  denies,  as  a  matter  of  fact,  that 
the  rates  charged  the  plaintiffs  are  unreasonable  and  contends,  as  a 
proposition  of  law,  that  the  company's  rates  are  not  required  to  be 
uniform  and  that  it  can  discriminate  in  the  rates  it  shall  charge.  It 
also  relies  upon  the  schedule  of  rates  contained  in  the  contract  with 
the  city  and  avers  that  the  charges  to  the  plaintiffs  do  not  exceed  the 
rates  therein  permitted. 

The  defendant  corporation  operates  under  the  franchise  from  the 
city,  which  permits  it  to  lay  its  pipes  in  the  public  streets  and  other- 
wise to  take  benefit  of  the  right  of  eminent  domain.  Besides,  from 
the  veiy  nature  of  its  functions  it  is  "  affected  with  a  public  use."  In 
Munn  V.  Illinois,  94  U.  S.  113,  which  was  a  case  in  regard  to  regulat- 
ing the  charges  of  grain  elevators,  it  was  held  that,  in  England  from 
time  immemorial  and  in  this  country'  from  its  first  colonization,  it  has 
been  customar}-  to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  public  wharfingers,  auctioneers,  innkeepers,  and  man}-  other 
matters  of  like  nature,  and,  where  the  owners  of  property  devotes  it  to 
a  use  in  which  the  public  has  an  interest,  he  in  effect  grants  to  the 
pui)lic  an  interest  in  such  use  and  must  to  the  extent  of  that  interest 
submit  to  be  controlled  by  the  public. 

Probably  the  most  familiar  instances  with  us  are  the  public  mills 
whose  tolls  are  fixed  by  statute,  and  railroad,  telegraph,  and  telephone 
companies,  for  the  regulation  of  whose  conduct  and  charges  there  is 
a  Slate  Commission,  establisherl  by  law.  There  have  been  reiterated 
decisions  in  the  United  States  Supreme  Court  and  in  the  several  States 


404  GKIFFIN    V.    GOLDSBORO    WATER   CO. 

affiiining  the  doctrine  laid  down  in  Munn  v.  Illinois,  snpra,  and  as  to 
every  class  of  interest  affected  with  a  public  use,  among  others,  water 
companies.  Spring  Valley  o.  Schottler,  110  U.  S.  347.  The  right  of 
fixing  rates  is  a  legislative  function  which  the  courts  cannot  exercise, 
but  it  is  competent  for  the  courts,  certainly  in  the  absence  of  legisla- 
tive regulations,  to  protect  the  public  against  the  exaction  of  opi)res- 
sive  and  unreasonable  charges  and  discrimination.  "The  franchise 
of  laying  pipes  through  the  city  streets  and  selling  water  to  the  in- 
habitants being  in  the  nature  of  a  public  use,  or  a  natural  monopoly, 
the  company  cannot  act  capriciously  or  oppressively,  but  must  supply 
water  to  all  impartially  and  at  reasonable  rates,  and  an  injunction  will 
issue  to  prevent  the  cutting  off"  the  water  supply  where  the  customer 
offers  to  pay  a  reasonable  rate  and  the  company  demands  an  unrea- 
sonable one."  2  Beach  Pri.  Corp.,  Section  834  (c) ;  Munn  v.  IHinois, 
supra  ;  Lumbard  v.  Stearns,  4  Cush.  60.  In  the  29  A.  &  E.  Enc.  19, 
it  is  said  :  "  The  acceptance  b\'  a  water  compan}-  of  its  franchise  car- 
ries with  it  the  duty  of  supplying  all  persons  along  the  lines  of  its 
mains,  without  discrimination,  with  the  commodit}'  which  it  was  organ- 
ized to  furnish.  All  persons  are  entitled  to  have  the  same  service  on 
equal  terms  and  at  uniform  rates."  If  this  were  not  so,  and  if  cor- 
porations existing  by  the  grant  of  public  franchises  and  supplying  the 
great  conveniences  and  necessities  of  modern  cit}-  life,  as  water,  gas, 
electric  light,  street  cars,  and  the  like  could  charge  any  rates  however 
unreasonable,  and  could  at  will  favor  certain  individuals  with  low  rates 
and  charge  others  exorbitantly  high  or  refuse  service  altogether,  the 
business  interests  and  the  domestic  comfort  of  ever}^  man  would  be  at 
their  mere}'.  They  could  kill  tlie  business  of  one  and  make  alive  that 
of  another  and  instead  of  being  a  public  agenc}'  created  to  promote 
the  public  comfort  and  welfare  these  corporations  would  be  the  mas- 
ters of  the  cities  they  were  established  to  serve.  A  few  wealth}'  men 
might  combine  and,  b}-  threatening  to  establish  competition,  procure 
very  low  rates  which  the  company  might  recoup  b}'  raising  the  price 
to  others  not  financially  able  to  resist — •the  very  class  which  most 
needs  the  protection  of  the  law  —  and  that  very  condition  is  averred 
in  this  complaint.  The  law  will  not  and  cannot  tolerate  discrimina- 
tion in  the  charges  of  these  quasi-public  corporations.  There  must  be 
equality  of  rights  to  all  and  special  privileges  to  none,  and  if  this  is 
violated,  or  unreasonable  rates  are  charged,  the  humblest  citizen  has 
the  riglit  to  invoke  the  protection  of  the  laws  equally  with  an}- 
other. 

While  tlie  defendant  cannot  charge  more  than  the  rates  stipulated 
in  the  ordinance  granting  it  tiie  franchise,  because  granted  upon  that 
condition,  those  rates  are  not  binding  upon  consumers  who  have  a 
riglit  to  the  protection  of  the  courts  against  unreasonable  charges. 
Since  tiie  Constitution  of  1868,  Article  VIII,  Section  1,  if  the  rates  had 
been  prescribed  in  a  charter  granted  by  the  Legislature,  they  would  be 
subject  to  revocation,  and  indeed  independently  of  that  constitutional 


COMMONWEALTH    V.    DELAWARE    AND    HUDSON,    ETC.    CO.         405 

provision,  Stone  v.  Farmer's  Co.,  116  U.  S.  307;  R.  Co.  v.  Miller,  132 
U.  S.  75;  Chicago  v.  Munn,  134  U.  S.  418;  Georgia  v.  Smith,  70  Ga. 
694  ;  Winchester  v.  Croxton,  98  Ivy.  739,  still  less  can  these  rates 
bind  consumers  (if  unreasonable  or  discriminating)  since  the  town  had 
authority  to  grant  the  franchise  but  not  to  stipulate  for  rates  binding 
upon  the  citizens.  The  Legislature  did  not  confer  that  power.  The 
rates  are  binding  upon  the  company  as  a  maximum  simply  because 
acting  for  itself  it  had  the  power  to  accept  the  franchise  upon  those 
conditions. 

The  allegations  of  fact  that  the  rates  are  unreasonable  and  oppres- 
sive are  denied.  That  the}'  are  not  uniform  is  not  denied  and  the  de- 
fendant contended  that  it  had  the  right  to  discriminate,  which  caiinot 
be  sustained.  On  the  final  hearing  the  cost  and  value  of  the  propert\' 
will  be  material  in  determining  as  to  the  reasonableness  of  the  rates 
charged.  Smyth  v.  Ames  (known  as  the  "Nebraska  Case"),  U.  S. 
Supreme  Court,  1898.  The  evidence  offered  on  that  point  on  the  hear- 
ing below  is  not  satisfactor}',  the  mere  amount  of  mortgage  bonds 
issued  on  the  property  being  no  reliable  guide  to  the  courts  as  to  the 
true  value  of  the  investment.  It  may  be,  as  sometimes  happens,  that 
the  bonds  and  stocks  are  watered.  Nor  is  the  evidence  of  the  cost  of 
construction  and  operation  conclusive,  as  has  often  been  held,  for  it 
may  be  that  the  work  was  extravagantly,  constructed  or  is  operated 
under  inefficient  management  and  the  public  are  not  called  on  to  pay 
interest  upon  such  expenditures,  in  the  shape  of  unreasonable  or  ex- 
tortionate rates.  Missouri  v.  Smith,  60  Ark.  221  ;  Chicago  v.  Well- 
man,  143  U.  S.  339  ;  Livingstone  v.  Sanford,  164  U.  S.  578. 

The  court  below  properly  continued  the  cause  to  the  hearing. 

No  error. 


COMMONWEALTH    v.     THE     DELAWARE     AND    HUDSON 
CANAL  CO.  AND  PENNSYLVANIA  COAL  CO. 

Supreme  Court  of   Pennsylvania,  1862. 

[43  Pa.  Si.  295.1] 

The  agreement  referred  to  in  the  information,  after  reciting  amongst 
other  things,  in  substance  and  effect,  that  it  was  not  for  the  interest 
of  the  canal  company  that  the  surplus  capacity  of  its  canal  for  trans- 
portation should  remain  unemployed  ;  that  no  company  would  prudently 
undertake  to  construct  a  "  railway  connecting  with  it  without  a  cer- 
tainty of  being  allowed  to  transport  thereon  at  a  permanent  rate  of 
tolls  ;  that  with  a  view  to  induce  capitalists  to  invest  their  funds  in  the 
construction  of  a  railroad  to  be  connected  with  the  canal,  the  company 
had  offered  a  permanent  tariff  of  tolls  on  all  coal  entering  the  canal  on 
any  such  railroad  ;  provides  that  the  canal  company  will  at  all  times 

1  This  case  is  abridged.  —  Ed. 


406         COMMONWEALTH    V.    DELAWARE    AND    HUDSON,   ETC.    CO. 

hereafter  furnish  to  an}-  and  all  boats  owned  or  used  bv  the  Wj-oming 
Coal  Association  for  the  time  being,  or  its  assigns,  for  the  purpose  of 
transporting  coal  entering  the  canal  b}'  railroads  connecting  witli  the 
canal,  «fec.,  &c. ,  all  the  facilities  of  navigation  and  transportation 
which  the  canal  shall  afford,  when  in  good  and  navigable  condition  and 
repair,  to  boats  owned  or  used  bj  an}'  other  company  or  persons,  or 
belonging  to  or  used  by  or  containing  coal  transported  for  the  canal 
company,  charging  and  collecting  a  toll  on  the  coal  at  a  rate  per  ton  to 
be  established  in  the  manner  following,  viz.  :  On  the  1st  day  of  May 
in  each  and  every  calendar  year  the  quantity  of  lump  coal  of  the  said 
Delaware  and  Hudson  Canal  Company,  which  shall  at  that  time  have 
beoji  sold  to  be  delivered  at  Rondout,  and  to  arrive  by  the  said  canal 
during  the  said  calendar  year,  shall  be  ascertained,  and  the  average 
price  at  whicli  such  sales  have  been  contracted,  shall  also  be  ascer- 
tained, and  from  the  average  price  thus  ascertained,  $2.50  sliall  be 
subtracted,  and  one-half  of  the  remainder  shall  be  the  toll  per  ton 
during  such  calendar  year,  except  that  if  any  discount  or  deduction, 
contingent  or  otherwise,  shall  be  agreed  upon  or  contemplated  in  the 
contracts  for  such  sales,  the  said  toll  siiall  be  reduced  correspondingly 
to  such  discount  or  deduction  as  shall  be  actually  made.  But  provided, 
nevertlieless,  that  if  on  the  1st  day  of  May,  in  any  calendar  year,  the 
quantity  of  lump  coal  of  the  said  Delaware  and  Hudson  Canal  Com- 
pany, wliich  shall  at  that  time  have  been  sold  as  aforesaid,  shall  be  less 
than  one-half  the  estimated  sales  for  such  year,  the  toll  during  such 
year  shall  be  calculated  in  the  manner  hereinbefore  provided  on  the 
average  price  at  which  the  sales  of  lump  coal  for  such  year  shall  be 
actually  made  ;  and  if  in  any  calendar  year  no  sales  of  the  coal  of  the 
Delaware  and  Hudson  Canal  Company  shall  be  made,  then  and  in  that 
case  the  toll  during  such  year  shall  be  calculated  on  the  sales  for  such 
year  of  the  lump  coal  of  the  Wyoming  Coal  Association  for  the  time 
being,  or  its  assigns,  in  the  manner  hereinbefore  provided  for,  calcu- 
lating the  toll  ou  the  sales  of  the  said  Delaware  and  Hud^ion  Canal 
Comijany.  And  in  case  of  an  enlargement  of  the  said  canal,  the  said 
president,  managers,  and  company,  and  their  successors  and  assigns, 
may  also  charge  and  collect  an  additional  toll  on  the  coal  transported 
in  pursuance  of  this  agreement,  at  a  rate  per  ton  of  2,240  pounds,  to  be 
estaltlished  after  the  completion  of  the  said  enlargement,  in  the  manner 
following,  viz.:  The  cost  of  transportation  per  ton  on  the  said  canal, 
l)etween  the  points  at  which  such  coal  shall  enter  the  said  canal  and 
tlie  point  on  the  Rondcnit  creek,  at  which  the  said  canal  meets  tide- 
water, after  the  full  effect  of  all  the  improvements  previous  to  the  said 
enlargement  shall  have  been  experienced,  shall  be  fairly  ascertained  or 
estalilished ;  the  cost  of  transportation  per  ton  on  the  said  canal 
between  those  points  after  the  said  enlargement  shall  have  been  com- 
pleted shall  also  be  fairly  ascertained  or  estimated,  and  one-hdf  of 
such  portion  of  the  reduction  in  the  cost  of  transportation  per  ton  on 
the  said  canal  between  these  points  as  shall   be   estimated   to   have 


COMMONWEALTH   V.   DELAWARE    AND    HUDSON,   ETC.    CO.        407 

been  produced  by  the  said  enlargement,  and  by  no  other  cause,  shall 
be  the  additional  toll  per  ton  to  be  thereafter  permanently  charged." 

The  contract  then  provides  that  until  such  enlargement  the  canal 
compan}-  shall  not  be  bound  to  allow  over  400,000  tons  to  be  trans- 
ported over  the  canal  in  an}'  one  season,  and  that  after  such  enlarge- 
ment it  shall  not  be  bound  to  allow  such  quantitv  to  be  increased  so  as 
to  exceed  in  anj'  one  season  "  one-half  of  the  whole  capacit}'  for  trans- 
portation of  the  said  canal,  exclusive  of  the  tonnage  employed  in  the 
transportation  of  articles  other  than  coal,"  and  the  main  question  was, 
whether  this  agreement,  made  on  the  31st  day  of  August,  1847,  be- 
tween the  canal  company  and  the  Wj-oming  Coal  Association,  and  re- 
newed with  the  Pennsylvania  Coal  Compan}-,  was  in  excess  of  the 
legitimate  power  of  said  parties. 

The  defendants  were  not  agreed  as  to  the  validit}'  of  the  contract, 
the  Hudson  Canal  Compan}'  insisting  that  it  was  and  is  contrar}'  to 
law,  while  the  coal  company  claimed  that  it  is  a  valid  and  binding 
agreement  as  between  the  parties.  Separate  answers  to  the  information 
were  filed  by  the  defendants,  but  as  the  objections  to  the  agreement 
are  all  contained  in  the  answers  of  the  canal  corapan}-,  and  are  suffl- 
cientl}'  stated  in  the  opinion  of  this  court,  it  is  uunecessarj-  to  repeat 
them  here. 

LowRiE,  C.  J.  .  .  The  information  alleges  that  the  agreement  ia 
controversy  is  in  excess  of  the  legitimate  power  of  these  corporations, 
and  prays  that  it  ma}'  be  so  declared  by  this  court,  and  that  the 
defendant  may  be  enjoined  from  acting  under  it,  and  also  that  they 
ma}'  be  required  to  appear  and  consent  to  or  refuse  its  cancellation, 
and  for  such  other  decree  as  may  be  agreeable  to  equity.  The  infor- 
mation would  have  been  formally  and  substantially  improved  if  it  had 
specially  suggested  wherein  the  agreement  is  in  violation  of  the 
corporate  rights  of  the  defendants.  But  we  may  treat  this  defect  as 
supplied  by  the  answers  of  the  defendants. 

The  defendants  have  got  into  a  quarrel  among  themselves  about  the 
agreement,  and  the  canal  company  confesses  and  claims  that  the 
agreement  is  contrary  to  law,  while  the  coal  company  insists  that  it  is 
not,  and  claims  that  it  shall  stand  as  the  bond  and  law  of  the  relations 
between  the  parties.  It  is  therefore  in  the  answer  of  the  canal  com- 
pany that  we  find  the  objections  to  the  contract  specified,  and  we 
proceed  to  consider  them. 

1.  It  is  objected  that  the  agreement  grants  to  the  coal  company  a 
monopoly  of  the  one-half  of  the  capacity  of  the  canal  of  the  other 
party,  to  the  exclusion  of  the  public,  because  it  contracts  to  furnish  to 
the  coal  company  all  the  facilities  of  navigation  which  the  canal  will 
afford,  not  exceeding  one-half  of  its  whole  capacity,  inclusive  of  the 
tonnage  employed  in  the  transportation  of  articles  other  than  coal. 

This  leaves  to  all  property  other  than  coal  its  full  right  of  transpor- 
tation on  the  canal ;  but  it  does  profess  to  give  the  coal  company  a 
right,  as  against  other  carriers  of  coal,  to  a  preference  to  the  extent  of 


408         COMMONWEALTH   V.    DELAWARE    AND   HUDSON,  ETC.   CO. 

one-half  the  capacity  of  the  canal.  And  this  ma}-  be  wrong  if  it 
interferes  with  the  claims  of  others  to  have  their  coal  carried  as 
cheaply  and  speedily  as  that  of  the  coal  company.  But  tliere  is 
no  complaint  that  an3body  has  been  wronged  by  this,  or  that  either 
company  has  by  this  actually  exercised  any  function  that  is  exclusive 
of  the  public  right.  When  the  defendants  do  in  fact  transgress  the 
limits  of  their  legitimate  functions  and  interfere  with  the  public  rights, 
then  will  be  the  time  to  bring  a  charge  against  them.  A  mere  intention 
or  contract  to  allow  an  act  that  may  be  wrong,  is  no  ground  for  an 
information  in  law  or  equity  in  the  nature  of  the  gito  warranto. 

2.  It  is  objected  that  the  agreement,  instead  of  fixed  tolls  to  be  col- 
lected at  the  locks  according  to  the  charter  of  the  canal  compan}-, 
provides  for  a  rate  of  toll  to  be  ascertained  by  the  market  price  of 
coal  in  ever}-  year,  and  thus  the  rate  of  toll  remains  uncertain  until 
this  price  is  ascertained,  and  it  cannot  therefore  be  demanded  at  the 
locks,  and  may,  in  certain  states  of  the  coal  market,  exceed  the  toll 
allowed  by  the  charter. 

We  do  not  see  that  this  objection  involves  an}'  public  grievance. 
The  canal  company  has  a  right  to  commute  its  tolls  ;  and  we  cannot 
see  that  the  public  has  any  interest  in  objecting  that  it  may  get  too 
much,  under  the  contract  of  commutation,  in  a  certain  contingency,  or 
that  it  has  contracted  away  part  of  its  means  of  obtaining  the  little 
that  it  agrees  to  accept  under  the  contract.  At  all  events,  the  agree- 
ment is,  by  itself,  no  actual  transgression  of  proper  functions. 

3.  But  the  above  objection  is  repeated  on  behalf  of  the  public  ;  that, 
on  account  of  the  uncertainty  of  the  toll,  the  canal  company  cannot 
always  know  how  much  to  demand  of  others,  and  therefore  cannot  do 
equal  justice  to  all  according  to  its  public  duty  as  a  canal  company. 
12  Harris,  138;   10  M.  &  W.  398. 

But  we  find  no  averment  or  pretence  that  the  public  or  any  private 
person  has  suffered  any  wrong  by  reason  of  this,  or  that  the  canal 
company  has  been  compelled,  in  obeying  this  part  of  the  contract,  to 
exercise  any  functions  that  do  not  properly  belong  to  it  as  a  canal 
company.  If  it  really  means  to  be  honest  towards  the  public,  we 
doubt  not  that  it  will  be  able  to  discover  some  such  reasonable  rule  of 
equality  in  dealing  with  other  carriers  that  the  public  will  have  no 
reasonable  ground  of  complaint.  Exact  equality  is  not  demanded, 
but  such  a  reasonable  approximation  to  it  as  can  be  secured  by  reason- 
able general  rules,  free  from  mere  arbitrariness. 

4.  It  is  objected  that  because  the  tolls  are  fixed  at  half  the  proceerls 
of  the  coal  after  deducting  the  estimated  costs  of  the  production, 
therefore  the  canal  company  is  a  speculative  dealer  in  coal,  which  is  a 
departure  from  the  purposes  of  its  creation. 

We  do  not  perceive  that  the  conclusion  follows  from  the  premises. 
Measuring  toll  by  the  profits  on  the  article  when  sold,  is  not  becoming 
a  dealer  in  coal,  else  government  would  be  a  dealer  in  articles  that  are 
subjected  to  an  ad  valorem  tariff.     It  is  very  common  for  the  State  to 


COMMONWEALTH   V.   DELAWARE  AND   HUDSON,   ETC.   CO.        409 

measure  taxes  according  to  supposed  profits,  and  we  find  no  public 
wrong  in  the  canal  company  doing  so  in  its  contract  of  commutation 
of  tolls. 

5.  It  is  objected  that  such  a  contract,  to  be  valid,  ought  to  have  the 
sanction  of  the  Legislature,  because  it  affects  the  interest  and  income 
of  the  State. 

But  it  is  not  any  way  shown  to  us  that  it  does  so.  Nothing  like 
this  is  averred  in  the  information,  and  of  course  we  cannot  assume  it. 
If  either  of  these  corporations  do  anything  under  the  contract  to  the 
interest  and  income  of  the  State,  and  contrary  to  its  charter,  and  this 
be  shown  to  us  in  any  regular  manner,  we  shall  probably  interfere  and 
correct  it.  But  we  can  do  nothing  arbitrarily.  We  must  have  some 
definite  allegation  and  proof  of  usurpation  before  we  can  do  anything. 
The  allegation  of  mere  probabilities  of  wrong  raises  no  question  for 
our  interference. 

6.  It  is  objected  that,  since,  under  the  contract,  the  tolls  are 
measured  by  the  profits,  the  coal  company  has  the  power  by  sacrificing 
the  regular  profits  or  a  portion  of  them,  to  control  the  coal  market,  and 
may  at  its  pleasure  so  depress  the  price  as  to  ruin  man}'  of  those 
engaged  in  the  trade,  and  greatly  disturb  the  public  interest  without 
any  serious  injury  to  itself,  and  that  it  did  so  last  spring. 

If  this  had  been  averred  in  the  information,  and  proved  as  one  of 
the  grounds  of  the  complaint  against  the  agreement,  we  should  have 
regarded  it  as  the  most  serious  one  of  all  those  that  have  been  urged ; 
but  it  is  neither  alleged  nor  proved  by  the  Commonwealth.  And  we 
incline  to  think  that  it  is  properl}'  so,  for  it  seems  to  us  that  this  objec- 
tion is  founded  rather  on  the  abuse  of  the  agreement  than  on  the 
nature  of  it,  and  that  the  remedy  ought  to  be  compensation  under  the 
equity,  if  not  the  letter,  of  the  agreement,  rather  than  cancellation 
of  it."^ 

Nothing  can  be  more  obvious  than  that  the  parties  intended  to  adopt 
a  standard  by  which  the  tolls  were  to  be  indirectly  measured.  But  that 
can  be  no  standard  that  ma}'  be  controlled  entirely  by  the  will  of  either 
part}',  and  neither  can  be  supposed  to  have  intended  such  a  measure  of 
value.  They  both  meant  to  fix  a  standard  independent  of  themselves, 
and  in  the  public  market  where  we  look  for  the  natural  standard  of 
value.  Both  of  them,  as  dealers  in  the  market,  would  have  an  influence 
in  fixing  the  market  price,  and  therefore  the  standard  :  but  neither  of 
them,  dealing  according  to  the  fair  laws  of  the  trade  and  of  competi- 
tion in  it,  could  control  this  standard  or  would  attempt  to  do  it.  That 
is  a  standard  that  may  well  be  appealed  to,  because  it  is  never  merely 
arbitrary,  and  in  trade  and  in  law  it  is  constantly  appealed  to. 

These  parties  are  large  dealers  in  coal,  and  therefore  their  sales  are, 
by  the  agreement,  to  be  taken  as  a  means  of  ascertaining  the  market 
price,  and  not  for  the  purpose  of  giving  either  of  them  the  power  to 
fix  that  price,  or  with  the  thought  that  either  of  them  might  do  so.  If 
they  arbitrarily  use  their  power  to  change  the  standard,  they  necessarily 


410  HOOVER   V.    PENNSYLVANIA    KAILROAD   CO. 

destroy  its  authority  as  a  standard  as  in  their  favor ;   for  it  is  not  their 
will,  but  the  fair  market  price  that  is  appealed  to. 

We  are  not  entitled  in  this  case  to  inquire  how  far  a  trading  corpo- 
ration is  liable  to  control  or  punishment  for  recklessly  raising  or 
depressing  prices,  for  our  sole  inquiry  is  concerning  the  legality  of  this 
agreement.  We  cannot  discover  any  such  illegality  in  it  as  would 
justif}'  us  in  directing  its  cancellation.  Some  of  the  allegations  of  the 
canal  company  seem  to  show  a  great  abuse  of  the  agreement  by  the 
coal  compan}',  but  the  information  is  in  no  degree  grounded  on  that, 
and  we  cannot  inquire  of  it,  and  we  must  volunteer  no  opinion  as  to 
the  fact  or  its  consequences  or  remedy. 

Information  dismissed} 


HOOVER  V.   PENNSYLVANIA  RAILROAD   CO. 

Supreme  Court  of   Pennsylvania,  1893.  • 

[156  Pa.  St.  220.2] 

Trespass  for  damages  for  alleged  unlawful  discrimination. 

At  the  trial,  liefore  Furst,  P.  J.,  it  appeared  that,  in  1881,  the  defend- 
ant agreed  to  ti-ansport  coal  from  the  Snow  Shoe  district  to  the  works 
of  the  Bellefonte  Iron  &  Nail  Company  for  the  sum  of  thirt}'  cents  per 
ton,  provided  the  nail  company  consumed  at  least  twenty  tons  per  day. 
It  appeared  that  the  coal  was  to  be  tariffed  at  the  usual  public  rate  of 
fifty  cents  per  ton,  and  that  a  rebate  of  twenty  cents  per  ton  net  would 
be  repaid  by  the  railroad  company  to  the  nail  compan}'.  In  1889, 
plaintiffs  became  retail  coal  dealers  in  Bellefonte,  and  were  charged  by 
the  railroad  company  the  usual  public  rate  for  the  transportation  of 
their  coal. 

Mr.  Justice  Green.  .  .  .  Let  us  now  see  what  is  the  voice  of  the 
authorities  upon  the  subject  of  discriminations  in  freight  charges  by 
carrying  companies.  Tiie  subject  is  an  old  one.  Prior  to  any  statutes 
in  England  or  in  this  country,  the  common  law  had  pronounced  upon 
the  rights  and  duties  of  carriers  and  freighters,  and  in  the  enactment  of 
statutes  little  more  has  been  done  than  to  embody  in  them  the  well- 
known  principles  of  the  common  law.  It  happens,  somewhat  singu- 
larly, that  the  very  question  we  are  now  considering,  of  a  discrimina- 
tion in  the  rates  charged  to  coal  dealers  and  to  manufacturers  who  use 
coal  as  a  fuel,  does  not  appear  to  have  arisen.  And  yet  it  is  very 
certain  that  such  discrimination  does  prevail,  and  has  prevailed  for  a 
long  time  on  all  lines  of  railway  and  canal.  It  is  highly  probable  that 
the  absence  of  litigation  upon  such  discrimination  is  due  to  the  general 

1  Compare:  Union  Pacific  Co.  v.  Goodridge,  149  U.  S.  680.  —Ed. 
*  This  case  is  abridged.  —  Ed. 


HOOVER   V.   PENNSYLVANIA   KAILROAD    CO.  411 

sentiment  of  its  fairness  and  justness.  Within  the  writer's  knowledge 
in  the  section  of  the  State  in  wliich  he  lives,  a  ranch  greater  difference 
between  the  rates  charged  to  dealers  and  those  charged  to  manufac- 
turers by  the  coal-carrying  companies  has  always  existed  and  now 
exists,  without  any  question  as  to  its  justness  or  its  legalit}'.  It  is 
matter  of  public  history  that  along  the  valleys  of  the  Leliigh  and  tlie 
Schuylkill  there  are  great  numbers  of  blast  furnaces,  rolling  mills,  rail 
mills,  foundries,  machine  shops,  and  numerous  other  manufacturing 
establishments  which  consume  enormous  quantities  of  the  coal  output 
of  the  State,  and  at  the  same  time  in  every  village,  town,  and  city 
which  abound  in  these  regions,  an  immensely  large  industr}'  in  the 
buying  and  selling  of  coal  for  domestic  consumption  is  also  prosecuted. 
And  what  is  true  of  the  eastern  end  of  the  State  is  without  doubt 
equall}'  true  throughout  the  interior  and  western  portions  of  the 
Commonwealth,  where  similar  conditions  prevail.  Yet  from  no  part 
of  our  great  State  has  ever  yet  arisen  a  litigation  which  called  in 
question  the  legality,  or  the  wisdom,  or  the  strict  justice  of  a  discrim- 
ination favorable  to  the  manufacturing  industries  as  contrasted  with 
the  coal-selling  industries.  Tliis  fact  can  scarce!}'  be  accounted  for 
except  upon  the  theory  that  such  discrimination,  as  has  thus  far  trans- 
pired, has  not  been  felt  to  be  undue,  or  unreasonable,  or  contrary  to 
legal  warrant.  In  point  of  fact  it  is  perfectly  well  known  and  appre- 
ciated that  the  output  of  freights  from  the  great  manufacturing 
centres  upon  our  lines  of  transportntion  constitutes  one  of  the  chief 
sources  of  the  revenues  which  sustain  them  financially'.  Yet  no  part 
of  this  income  is  derived  from  those  who  are  mere  bu3'ers  and  sellers 
of  coal.  When  the  freight  is  paid  upon  the  coal  thej'  buj",  the  revenue 
to  be  derived  from  that  coal  is  at  an  end.  Not  so,  however,  with  the 
revenue  from  tlie  coal  that  is  carried  to  the  manufacturers.  That  coal 
is  consumed  on  the  premises  in  the  creation  of  an  endless  variety  of 
products  which  must  be  put  back  upon  the  tran3|Dorting  lines,  en- 
hanced in  bulk  and  weight  by  the  other  commodities  which  enter  into 
the  manufactured  product,  and  is  then  distributed  to  the  various 
markets  where  the}-  are  sold.  In  addition  to  this,  a  manufacturing 
plant  requires  other  commodities  besides  coal  to  conduct  its  operations, 
wliereas  a  coal  dealer  takes  nothing  but  his  coal,  and  the  freight  derived 
In"  the  carrier  from  the  transportation  of  these  commodities  forms  an 
important  addition  to  its  traffic,  and  constitutes  a  condition  of  the 
Inisiness  which  has  no  existence  in  the  business  of  carrying  coal  to 
those  who  are  coal  dealers  only.  Thus  a  blast  furnace  requires  great 
quantities  of  iron  ore,  limestone,  coke,  sand,  raachiner}',  lumber,  fire 
bricks,  and  other  materials  for  the  maintenance  of  its  structures  and 
the  conduct  of  its  business,  none  of  which  are  necessary  to  a  mere 
coal-selling  business.  These  are  some  of  the  leading  considerations 
which  establish  a  radical  difference  in  the  conditions  and  the  circum- 
stances which  are  necessarily  incident  to  tlie  two  kinds  of  business  we 
are  considering.     Another  important  incident  which  distinguishes  them 


412  BAILY   V.    FAYETTE    GAS-FUEL   CO. 

is  that  the  establishment  of  manufacturing  industries,  and  the  conduct- 
ing of  their  business,  necessitates  the  employment  of  numbers  of  work- 
men and  other  persons  whose  services  are  needed,  and  these,  with 
their  families,  create  settlements  and  new  centres  of  population,  re- 
sulting in  villages,  towns,  boroughs,  and  cities,  according  to  tlie  extent 
and  variety  of  the  industries  established,  and  all  these,  in  turn,  furnish 
new  and  additional  traffic  to  the  lines  of  transportation.  But  nothing 
of  this  kind  results  from  the  mere  business  of  coal  selling.  In  fact 
that  business  is  one  of  tlie  results  of  the  manufacturing  business  and  is 
not  co-ordinate  with  it.  The  business  of  the  coal  dealer  is  promoted 
b}'  the  concentration  of  population  which  results  from  the  establish- 
ment of  manufacturing  industries,  and  these  two  kinds  of  business  are 
not  competitive  in  their  essential  characteristics,  but  naturally  proceed 
together,  side  by  side,  the  coal  selling  increasing  as  the  manufacturing 
increases  in  magnitude  and  extent.  Judgment  for  defendant.^ 


BAILY  V.  FAYETTE  GAS-FUEL   CO. 
Supreme  Court  of  Pennsylvania,   1899. 

[193  Pa.  St.  17.5.] 

On  September  21,  23,  and  24,  1898,  the  defendant  company  caused 
to  be  inserted  in  the  Dail}'  News  Standard,  published  in  Uniontown,  aa 
advertisement,  notifying  domestic  consumers  of  natural  gas  that  after 
October  1,  1898,  the  rates  for  gas  would  be  as  follows:  For  heat, 
twent3--five  cents  per  1,000  cubic  feet;  for  light,  $1.50  per  1,000  cubic 
feet;  and  requiring  all  consumers  desiring  to  use  gas  for  light  to  notify 
the  company  immediately  that  the  liglit  meters  might  be  set.  At  or 
about  the  same  time  similar  notices  were  mailed  to  the  company's 
customers.  The  plaintiff,  a  resident  of  Uniontown,  saw  the  notice  as 
published  and  also  received  one  by  mail.  On  or  about  October  3, 
1898,  an  employee  of  the  defendant  company  notified  the  plaintiff 
orally  that  if  he  did  not  call  immediately  at  the  defendant's  office  and 
make  arrangements  for  using  the  gas  for  illumination  the  gas  would 
be  shut  off,  whereupon  the  plaintiff'  filed  the  bill  in  this  case,  alleging 
that  the  proposed  difference  in  charge  for  gas  used  for  illuminating  and 
heating  purposes  is  an  unjust  and  unlawful  discrimination,  and  an  un- 
reasonable regulation,  not  made  in  good  faith,  but  for  the  benefit  of 
other  corporations  ;  that  the  proposed  action  of  the  defendant  would 
be  a  violation  of  the  plaintiff's  riglits  and  the  defendant's  duties  and 
would  work  a  continuous  and  irreparable  injury  to  the  plaintiff",  and 
praying  that  the  defendant  be  restrained  from  shutting  off  plaintiff's 

1  Compare:  Grersser  v.  McGrath,  13  Fed.  373  ;  Louisville  Co.  v.  Tulghau,  91  Ala. 
555;  Indiauapolis  Co.  v.  Erwiu,  118  111.  :250.  — Ed. 


BAILY   V.   FAYETTE    GAS-FUEL    CO.  413 

supply  of  natural  gas  and  from  an}-  interference  with  the  connec- 
tion between  its  mains  or  supply  pipe  and  plaintiff's  premises,  which 
would  prevent  him  from  using  natural  gas  for  either  heating  or  ilhuni- 
nating  purposes,  so  long  as  the  plaintiff  continues  to  pay  the  usual 
rates  charged  generall}'  for  gas,  without  discriminating  as  to  the  use 
thereof  for  illuminating  purposes,  &c. 

Mitchell,  J.  The  defendant  company-  was  chartered  under  the  Act 
of  INIay  29,  1885,  P.  L.  29,  to  produce,  transport,  supply,  &c.,  natural 
gas  for  heat,  liglit,  or  other  purposes.  It  has  been  supplying  the  gas 
for  both  heat  and  light,  and  proposes  to  continue  doing  so,  but  n[)on 
terms  making  a  difference  in  price  according  to  the  use  lo  which  tlie 
gas  is  put  by  the  consumer.  The  question  now  before  us  is  the  reason- 
ableness of  this  regulation. 

In  his  opinion  the  learned  judge  below  said,  "  So  far  as  concerns 
this  case  the  defendant  company  may  be  regarded  as  incorporated  for 
the  purpose  of  supplying  natural  gas  to  consumers  for  heat  and  light." 
Not  only  did  its  charter  powers  cover  both  uses,  but  as  already  said 
its  actual  operation  has  included  both,  and  it  is  not  intended  now  to 
abandon  either,  even  if  that  could  be  done.  The  corporate  powers  are 
the  measure  of  corporate  duties. 

The  gas  is  brouglit  bj-  the  company  through  the  same  pipes  for  both 
purposes  and  delivered  to  the  customers  at  the  same  point,  the  curb. 
Thence  it  goes  into  pipes  put  in  by  the  consumer,  and,  after  passing 
tlirough  a  meter,  is  distributed  by  the  customer  through  his  premises 
according  to  his  own  convenience.  The  regulation  in  question  seeks 
to  differentiate  the  price  according  to  the  use  for  heating  or  for  light. 
It  is  not  claimed  that  there  is  any  difference  in  the  cost  of  the  product 
to  the  company,  the  expense  of  supplying  it  at  the  point  of  delivery  or 
its  value  to  the  company  in  the  increase  of  business  or  other  waj's. 
Some  effort  was  made  to  show  increased  risk  to  the  company  from  the 
use  of  gas  for  lighting  purposes,  but  the  evidence  of  danger  was  so  re- 
mote and  shadowy  that  it  cannot  be  considered  as  more  than  a  mere 
makeweight.  The  real  argument  seeks  to  justify  tlie  difference  in  price 
solely  by  the  value  of  the  gas  to  the  consumer,  as  measured  by  what 
he  would  have  to  pay  for  a  substitute  for  one  purpose  or  the  other 
if  he  could  not  get  the  gas.  This  is  a  wholly  inadmissible  basis  of  dis- 
crimination. 

The  implied  condition  of  the  grant  of  all  corporate  franchises  of 
even  quasi-public  nature  is  that  they  shall  be  exercised  without  indi- 
vidual discrimination  in  behalf  of  all  who  desire.  From  the  inception 
of  the  rules  applied  in  early  days  to  innkeepers  and  common  carriers 
down  to  the  present  day  of  enormous  growth  of  corporations  for  nearlj- 
ever}-  conceivable  purpose,  there  has  been  no  departure  from  this  pri/i- 
ciple.  And  from  all  the  legion  of  cases  upon  this  subject  the  distin- 
guished counsel  for  the  appellee  have  not  been  able  to  cite  a  single  one 
in  which  a  discrimination  based  solely  on  the  value  of  the  service  to 
the  customer  has  been  sustained.     Hoover  v.  Penua.  R.  Co.,  156  Pa. 


414  LADD    V.    BOSTON. 

220,  was  much  relied  on  b}'  the  court  below,  but  was  decided  on  a  very 
different  principle.  That  was  an  action  for  damages  for  unlawful  dis- 
crimination by  a  dealer  in  coal,  because  a  manufacturing  company  had 
been  allowed  a  rebate  on  coal  carried  to  it.  But  it  was  held  that  as 
the  rebate  was  allowed  in  consideration  of  a  minimum  of  coal  to  be 
carried  per  day,  and  also  in  view  of  return  freight  on  the  product  of 
the  manufacturing  company,  it  was  not  an  unreasonable  discrimina- 
tion ;  in  other  words,  that  the  company  might  look  for  its  compensation 
not  onl^'  to  the  actual  money  freights  from  present  service,  but  also  to 
increased  business  to  grow  out  of  the  establishment  of  a  new  industry 
in  that  place.  So  also  Phipps  i\  London  &  North  Western  Ry.  Co., 
L.  R.  1892,  2  Q.  B.  229,  cited  for  appellee,  where  the  decision  was 
put  upon  the  right  of  the  railroad  to  make  special  rates  for  freiglits 
from  distant  points  which  otherwise  it  could  not  get  at  all.  Both  cases 
belong  to  the  numerous  class  of  discrimination  sustained  on  the  basis 
of  special  advantages  to  the  carrier,  not  the  customer. 

Decree  reversed^  injunction  directed  to  be  reinstated  and  made 
permanent.     Costs  to  be  paid  by  appellee. 


LADD   V.    BOSTON. 
Supreme  Court  of  Massachusetts,  1898. 

[170  Mass.  332,1] 

Bill  in  equity,  filed  December  31,  189G,  alleging  the  following  facts. 

The  plaintiff  is  the  owner  of  a  building  on  Pemberton  Square  in 
Boston,  and  the  defendant  supplies  the  water  to  be  used  therein.  The 
defendant  has  established,  and  still  continues,  fixture  rates  and  meter 
rates,  in  accordance  with  which  it  requires  water  takers  to  pa}-  for  the 
water  they  use.  Man}'  years  ago  the  defendant  put  a  water  meter  into 
the  building  owned  by  the  plaintiff,  and  has  maintained  the  same  there 
ever  since.  At  the  time  the  meter  was  put  in,  the  plaintiff,  relying 
upon  its  continuance,  supplied  his  building  very  liberallj-  with  water 
fixtures.  By  the  meter  rates,  the  water  used  in  the  building  amounts 
to  about  five  dollars  each  year,  but  the  plaijitiff  has  always  paid  fifteen 
dollars  per  annum,  that  being  the  minimum  meter  rate. 

The  defendant  has  recently  adopted  a  polic}'  of  removing  all  meters 
where  it  would  receive  more  money  from  fixture  rates,  without  any  re- 
gard to  the  injustice  it  will  work  to  certain  water  takers.  In  accord- 
ance with  such  polic}',  it  now  threatens  to  remove  said  meter  and  put  the 
building  upon  fixture  rates,  and  to  shut  off  the  water  unless  the  plaintiff 
allows  it  to  do  so.     By  fixture  rates  for  all  the  fixtures  in  the  building 

1  The  case  is  abridged.  —  Ed. 


LADD   V.    BOSTON.  415 

in  actual  use  the  plaintiff  would  be  required  to  pa}'  about  one  hundred 
and  five  dollars  per  annum.  The  water  fixtures  in  the  building  cannot 
be  lessened  or  rearranged  without  ver}'  great  expense,  and  in  no  way 
can  they  be  so  lessened  or  rearranged  as  to  make  the  fixture  rate  in 
any  sense  reasonable  for  the  quantity  of  water  used.  The  income  from 
the  building  has  largely  decreased  in  the  last  few  years,  and  is  not  suf- 
ficient to  warrant  tlie  payment  of  such  excessive  water  taxation. 

The  plaintiff  has  suggested  to  the  defendant  that  the  minimum  meter 
rate  be  reasonably  increased  if  it  be  not  now  large  enough  to  be  just  to 
fixture-rate  watei"  takers,  and  he  has  offered  to  furnish  his  own  private 
meter  and  pay  for  repairs  on  the  same  if  he  could  tliereby  continue  to 
enjoy  meter  rates  ;  but  this  suggestion  has  been  declined,  and  this  offer 
refused.  If  the  building  is  placed  upon  fixture  rates,  the  plaintiff  will 
be  obliged  to  pay  more  than  twenty  times  as  much  as  other  water  takers 
pay  for  the  same  quantity  of  water. 

Knowlton,  J.  .  .  .  Considerable  discretion  in  determining  the 
methods  of  fixing  rates  is  necessarily  given  by  the  statute  to  the  water 
commissioner.  Mone}'  must  be  obtained  from  water  takers  to  reim- 
burse the  cit}"  wholly  or  in  part  for  the  expense  of  furnishing  water. 
An  equitable  determination  of  the  price  to  be  paid  for  supplying  water 
does  not  look  alone  to  the  quantity-  used  b}-  each  water  taker.  The 
nature  of  the  use  and  the  benefit  obtained  from  it,  the  nuinber  of  per- 
sons who  want  it  for  such  a  use,  and  the  effect  of  a  certain  method  of 
determining  prices  upon  the  revenues  to  be  obtained  by  the  city,  and 
upon  the  interests  of  property-holders,  are  all  to  be  considered.  Under 
any  general  and  uniform  system  other  than  measuring  the  water,  some 
will  pay  more  per  gallon  than  others. 

It  appears  by  the  bill  that  the  plaintiff  has  so  arranged  fixtures  in 
his  building  that  he  and  his  tenants  can  obtain  the  convenience  and 
benefit  of  having  water  to  use  in  many  places,  while  the  quantity  which 
they  want  to  use  in  the  whole  building,  paid  for  at  the  rate  per  gallon 
charged  for  measured  water,  would  cost  onl}-  five  dollars  per  year.  He 
has  been  accustomed  to  pay  fifteen  dollars  per  year,  because,  however 
small  the  quantity  used,  that  is  the  lowest  sum  per  year  for  which  water 
will  be  furnished  under  the  rules  through  any  meter. 

The  only  averment  in  the  bill  which  tends  to  show  that  the  charge 
for  his  building  after  the  meter  is  removed  will  be  unreasonable,  is  that 
he  "  will  be  obliged  to  pa}-  more  than  tweut}'  times  as  much  as  other 
water  takers  pay  for  the  same  quantit}'  of  water."  This  means  that 
the  arrangement  of  fixtures  in  his  building  is  such  that,  paying  by  the 
fixture  at  the  ordinary  rate,  the  aggregate  quantity  used  will  be  so 
small  as  to  make  the  price  per  gallon  twenty  times  as  much  as  the 
price  paid  for  measured  water  where  ^meters  are  allowed  to  be  used,  or 
the  lowest  price  paid  at  rates  by  the  fixture  where  the  largest  quantities 
are  used  through  the  fixtures.  This  does  not  show  that  charging  by 
the  fixture  is  an  improper  method.  It  only  shows  that  the  number  and 
arrangement  of  the  fixtures  in  the  plaintiff's  building  are  uneconomical 


416     STATE  EX  EEL.  CUMBERLAXD,  ETC.  CO.  V.  TEXAS,  ETC.  RAILROAD. 

for  the  owner  as  compared  with  a  different  construction  and  arrange- 
ment of  the  conveniences  for  using  water  in  some  other  buildings. 

The  rights  of  the  parties  are  not  affected  by  the  fact  that  the  plaintiff 
was  using  a  meter  when  he  put  in  his  fixtures.  lie  knew  that  he  had 
no  contract  for  the  future  with  the  city  in  regard  to  the  mode  of  fixing 
the  price  to  be  paid  for  water,  and  it  appears  that  the  quantity-  which 
he  has  been  using  is  only  about  a  third  of  the  smallest  quantity  for 
which  water  is  ever  charged  by  the  gallon,  running  through  a  meter. 

The  bill  does  not  state  a  case  for  relief  in  equity. 

£ill  dismissed. 


STATE  EX  REL.  CUMBERLAND   TELEPHONE   AND   TELE- 
GRAPH  CO.    V.    TEXAS    AND   PACIFIC    RAILROAD    CO. 

Supreme  Court  of  Louisiana,  1900. 

[28  So.  Rep.  284.1] 

Blanchard,  J.  .  .  .  Defendant  company  is,  quoad  its  lines  in 
Louisiana,  a  Louisiana  corporation.  It  acquired  b}'  purchase  and  ab- 
sorption the  franchise  rights  and  lines  of  the  New  Orleans  Pacific  Rail- 
way Company,  which  held  under  a  legislative  charter  from  the  State  of 
Louisiana,  and  whose  domicile  was  the  city  of  New  Orleans.  See  Act 
No.  14,  Acts  La.  1876,  and  articles  of  agreement  of  consolidation 
between  the  Texas  Pacific  Railway  Company  and  the  New  Orleans 
Pacific  Railway  Compan}-,  found  in  the  record.  It  is  not  true  that  the 
court,  in  its  decree  heretofore  rendered,  has  assumed  the  authorit}'  to 
manage  defendant  company's  railway  and  to  direct  the  running  of  its 
trains.  All  the  decree  does  is  to  require  of  the  company  the  perform- 
ance of  the  same  service  for  relator  that  it  has  extended  to  others, 
notably  the  Western  Union  Telegraph  Compan}'.  The  evidence  estab- 
lishes that  poles  and  materials  for  the  construction,  repair,  and  main- 
tenance of  the  Western  Union  lines  have  been  distributed  bj'  the  cars 
of  plaintiff  company  between  stations,  and  that  this  has  been  going  on 
for  3"ears,  and  still  goes  on.  It  also  establishes  that  it  has  been  con- 
stantly the  practice  of  defendant  company  to  deliver  freight  for  planters 
and  others  between  stations,  and  to  receive  for  transportation,  at  points 
between  stations,  rice,  sugar,  &c.  This  being  shown,  it  is  held  tliat 
the  company  may  not  discriminate,  and,  when  called  upon  under  con- 
ditions that  are  reasonable,  must  perform  the  like  service  for  relator; 
and  the  dut}',  being  of  a  public  nature,  is  enforceable  by  mandamus. 
The  evidence  also  shows  that  the  same  service  herein  required  of  de- 
fendant company  has  been  freel}'  accorded  this  relator  and  others  by 
other  railroad  companies  over  theii-  lines  in  this  and  other  States. 
Relator,  it  appears,  owns  its  own  cars,  on  which  are  loaded  its  tele- 

''■  This  case  is  abridged.  —  Ed. 


CITY   OF    MOBILE    V.    BIENVILLE    WATER    SUPPLY   CO.  417 

pbonc  and  telegraph  poles.  It  applied  to  defendant  compan}-  to  haul 
these  cars  over  its  lines  between  New  Orleans  and  Shreveport  and 
throw  the  poles  off,  or  permit  them  to  be  thrown  off,  at  convenient  dis- 
tances. Other  railroad  companies,  operating  lines  of  railway  into  and 
out  of  New  Orleans,  had  done  this,  and  defendant  company  does  the 
same  for  the  Western  Union  Telegraph  Company,  a  rival  line.  It  re- 
fused the  service  to  relator.  That  it  is  the  province  of  the  court  to  say 
to  this  common  carrier,  "  What  you  do  for  others  you  cannot  refuse 
to  relator,"  cannot,  we  think,  be  seriously  questioned.  And  in  so  say- 
ino",  and  enforcing  by  its  writs  the  performance  of  the  duty,  it  is  not 
apparent  that  defendant  company  is  denied  any  of  the  rights,  privileges, 
and  immunities  granted  to  it  by  the  several  acts  of  Congress  referred 
to  in  the  application  for  rehearing  and  in  the  briefs  filed  on  its  behalf. 
The  rehearing  applied  for  is  denied. 


CITY  OF   MOBILE  u.    BIENVILLE   WATER   SUPPLY   CO. 

Supreme  Court  of  Alabama,  190L 

[30  So.  Kep.  445.1] 

Appeal  from  Chancery  Court,  Mobile  County ;  Thomas  H.  Smith, 
Chancellor. 

Bill  by  the  Bienville  Water  Supply  Company  against  the  city  of 
Mobile  and  others.  Demurrers  to  the  bill  were  overruled,  and  defend- 
ants appeal. 

Haralson,  J.  ...  3.  The  bill  alleges  that  complainant  is  a  corpora- 
tion chartered  by  the  State  for  the  purpose  of  supplying  and  selling 
water  to  the  city  of  Mobile  and  to  its  inhabitants  ;  that  it  has  laid  its 
mains  and  pipes  in  the  streets  of  the  city  and  established  its  plant  at 
an  expense  of  over  $800,000,  and  is  supplying  water  to  customers  in 
the  city  for  family  use,  sewerage,  and  other  purposes  ;  that  the  city  of 
Mobile,  by  an  act  of  the  30th  November,  1898,  was  authorized  to  con- 
struct a  system  of  waterworks  and  sewers  for  the  use  of  itself  and  its 
inhabitants,  and  was  empowered  to  collect  such  rates  for  water  sup- 
plied for  the  use  of  said  sewerage  system  as  shall  be  sufficient  to  pay 
the  interest  on  the  bonds  issued  by  it  for  the  purpose  of  providing  said 
waterworks  and  sewerage  systems  and  the  expenses  necessary  for 
operating ;  such  rate  not  to  exceed  the  usual  and  customary  rates 
charged  by  other  cities  similarly  situated  for  like  service. 

It  was  further  shown,  that  by  act  February  15,  1899,  entitled  "  An 
Act  to  promote  the  health  of  the  city  of  Mobile,"  &c.  (Act  1898-99, 
p.  895),  the  city  was  empowered  to  compel  connections  with  its  sewers, 
and  for  the  use  thereof,  "to  fix  and  charge  such  reasonable  rates  for 

1  This  case  is  abridged.  —  Ed. 
27 


418  CITY   OF   MOBILE   V.    BIENVILLE   WATER   SUPPLY   CO. 

the  purpose  of  maintaining  and  operating  said  sewerage  S3-stem  and 
paying  tlie  interest  on  tlie  bonds  issued  b}-  the  cit}'  of  Mobile  to  build 
said  sewerage  system,  as  said  mayor  and  general  council  may  deem 
proper ;  "  that  it  was  empowered  by  another  act  (Acts  1898-99, 
p.  16),  to  issue  $750,000  of  bonds,  secured  by  mortgage  on  its  water 
and  sewerage  system,  of  which  $500,000  was  to  be  used  for  buying  or 
building  waterworks,  and  $250,000  for  buying  or  building  sewers  ;  that 
it  has  issued  and  sold  said  bonds  and  built  both  systems,  expending 
over  $500,000  for  the  water  system,  and  not  over  $200,000  for  the 
sewer  system  ;  that  it  is  operating  both  systems,  and  from  its  water- 
works is  furnishing  water  to  itself  and  its  inhabitants,  and  is  supplying 
water  on  about  twenty  miles  of  streets  upon  which  there  are  no  sewers. 

The  averment  is  made,  that  the  city  has  never  fixed  any  rate  for  the 
use  of  its  sewers  alone,  but  it  will  not  allow  any  customers  of  com- 
plainant's water  to  connect  with  or  use  its  sewers,  except  at  the  same 
price  as  the  city  charges  for  both  its  water  and  sewers  together,  in 
effect  forcing  its  citizens  and  inhabitants  to  take  the  water  of  the  cit}-, 
or  to  pay  for  the  water  of  complainant  in  addition  to  what  each  citizen 
would  have  to  pay  for  the  city's  water  and  sewerage  together,  discrimi- 
nating, as  is  alleged,  against  complainant  and  making  it,  in  effect,  fur- 
nish water  for  nothing,  or  to  lose  its  customers  by  reason  of  the  double 
charges  so  imposed  on  them  ;  that  the  city  through  its  officers  and 
agents  threatens  the  people  of  Mobile  that  they  will  not  be  allowed  to 
use  the  sewers,  unless  they  subscribe  for  and  take  the  city  water,  and 
that  they  will  not  be  allowed  to  use  the  water  of  complainant  in  con- 
nection with  the  city's  sewers  ;  that  the  city  has  the  physical  power,  by 
means  of  its  police  force,  to  enforce  this  threat,  and  it  is  thus  intimidat- 
ing tlie  customers  of  complainant,  and  compelling  them  to  leave  com- 
plainant and  take  the  water  from  the  city  waterworks,  and  upon  their 
desiring  to  return,  the  city,  through  its  officers,  have  refused  to  let  them 
disconnect  from  the  city's  pipes  or  to  connect  with  complainant's. 

It  is  further  averred  that  the  city  charges  its  own  customers  on 
streets  where  there  is  no  sewer  service,  the  same  rate  that  it  charges 
others  for  both  water  and  sewers,  along  streets  where  said  sewers  are 
laid,  which,  it  is  alleged,  is  a  discrimination  in  charges  for  sewerage,  not 
only  against  complainant  and  its  customers  of  water,  but  also  against 
all  consumers  of  water  and  customers  of  the  city,  not  on  streets  or  lines 
where  the  sewers  are  laid. 

It  is  also  averred  that  the  city  is  insolvent,  so  that  nothing  can  be 
made  out  of  it  by  execution  at  law. 

4.  The  first,  second,  third,  fourth,  and  fifth  grounds  of  demurrer  to 
the  amended  bill  may  be  grouped  as  raising  in  different  forms,  the  same 
question.  To  state  the  contention  of  defendant  in  the  language  of 
counsel,  these  "grounds  of  demurrer  challenge  the  sufficiency  of  the 
bill  as  amended,  upon  the  ground  that  the  bill  shows  that  the  servants 
and  agents  of  the  city  exceeded  their  power  and  authority,  [and] 
should  have  been  sustained,"  the  contention  being  "  that  said  acts  and 


CITY   OF   MOBILE    V.    BIENVILLE    WATER    SUPPLY   CO.  419 

doings  of  said  officers  and  agents,  as  charged  in  said  bill  as  amended, 
were  void  and  not  binding  upon  the  cit}'  of  Mobile."  The  bill  alleges, 
however,  verj-  distinctl}-  that  the  city  is  committing  the  wrongs  com- 
plained of  through  its  officers  and  agents,  a  fact  the  grounds  of  de- 
murrer specified  clearly  overlook.  The  cit}'  could,  of  course,  commit 
the  alleged  wrongs  in  no  other  way,  except  through  its  agents  and 
officers.  If  the  acts  of  the  citj'  are  warranted  b}*  law,  it  could  not  be 
enjoined  from  committing  them.  The  wrongfulness  of  these  acts  is, 
therefore,  the  only  predicate  for  relief. 

5.  The  other  grounds  of  demurrer  to  the  original,  refiled  to  the 
amended  bill,  and  those  added  to  the  bill  as  amended,  raise  the  more 
serious  question  to  be  decided. 

From  the  facts  of  the  case,  as  above  recited,  if  true,  —  as  they  must 
be  taken  on  demurrer,  —  it  distinct!}'  appears  that  the  city,  while  it 
has  the  authorit}'  to  do  so,  has  never,  b}-  ordinance,  fixed  an}-  charge 
or  rate  for  the  use  of  its  sewers,  and,  indeed,  is  making  no  charge  to 
its  own  customers  for  the  use  of  the  same  ;  that  it  charges  any  one 
using  its  water  alone  as  much  as  it  charges  another  for  the  use  of  both 
water  and  sewer;  and  against  those  who  use  the  complainant's  water, 
it  charges  for  sewer  service  alone  as  much  as  it  charges  its  own  cus- 
tomers for  both  water  and  sewerage,  —  thus  making  its  sewers  free  to 
those  who  use  its  water,  while  it  imposes  on  complainant's  customers 
a  discriminating  and  onerous  charge  for  the  use  of  its  sewers,  —  as 
much,  as  is  alleged,  as  it  charges  for  its  own  water  and  sewerage  in 
addition.  Whether  intended  b_v  the  city  to  so  operate  or  not,  one  can 
scarcely  conceive  of  a  more  effective  scheme  to  deprive  the  complainant 
of  its  customers  than  the  one  alleged  in  the  bill.  If  complainant  has 
to  furnish  its  customers  with  water,  and  they  are  required  by  the  city 
to  pa}-  for  sewerage  the  same  price  it  charges  its  own  customers  for  its 
water  and  sewerage,  it  follows  the  complainant  would  have  to  furnish 
water  practically  free  or  abandon  the  business  ;  for  it  would  be  unrea- 
sonable to  suppose  that  any  one  would  use  the  complainant's  water 
and  bear  the  additional  expense  imposed  for  so  doing.  These  sewers 
of  the  city  are  for  the  public  at  large,  and  every  one  should  be  per- 
mitted to  use  them  without  any  discrimination  in  charges  against  him. 
The  franchise  to  construct  sewers  being  in  the  nature  of  a  public  use, 
the  duty  is  on  the  city  to  supply  sewerage  rates  to  all  impartially  on 
reasonal)le  terms.  As  is  said  by  Mr.  Bates,  "  All  persons  are  entitled 
to  have  the  same  service  on  equal  terms  and  on  uniform  rates."  In 
addition,  it  is  averred,  as  seen,  that  citizens  are  notified  by  the  city 
that  they  cannot  use  its  sewers  unless  they  subscribe  for  the  city  water, 
and  customers  of  complainant,  desiring  to  return  to  it,  are  forbidden 
by  the  city  from  disconnecting  from  its  pipes  and  connecting  with  com- 
plainant's, —  a  threat  the  city  has  the  physical  power  to  enforce. 

If  these  wrongs  exist,  they  should  be  remedied.  The  complainant 
is  far  more  interested  and  injured  than  any  one  or  all  of  its  customers. 
It  cannot  live  and  enjoy  the  rights  and  privileges  bestowed  on  it  by  its 


420  FHIPP3    V.   LONDON    AND    NORTH    "WESTERN    RAILWAY. 

charter,  if  by  unjust  discriminations  on  tlie  part  of  the  cit}'  in  operating 
its  sewer  S3-stem,  its  customers  are  taken  from  it.  Its  customers  might 
not  be  willing  to  incur  tlie  trouble  and  odium  of  litigation  to  redress  the 
private  wrongs  thus  done  to  them,  even  at  complainant's  expense. 
But,  complainant  itself  has  rights  which  should  be  protected  against 
such  alleged  wrongs,  and  is  entitled  to  seek  redress  in  its  own  name. 
The  city  should  on  considerations  of  highest  equity  and  justice,  as  by 
its  charter  it  is  authorized  to  do,  fix  a  rate  for  sewer  service,  distinct 
from  the  rate  fixed  for  the  use  of  its  water,  and  this  rate  should  be  the 
same  to  all  persons,  including  the  complainant  and  its  customers,  or, 
it  should  make  them  free  to  all,  without  discrimination.  In  other 
words,  these  sewers  should  be  used  to  promote  the  public  health,  as 
free  to  oue  person  as  another,  or  open  to  all,  if  any  rate  of  charges 
is  fixed,  on  equal  terms  and  on  uniform  charges  for  their  use.  No 
more  than  this  can  be  justly  and  legall}'  claimed  by  the  cit}'  under  its 
authorit}'  from  the  Legislature,  to  establish  its  sewer  S3'stem. 

6.  The  complainant  is  entitled,  upon  the  facts  stated,  to  the  re- 
straining power  of  a  Court  of  P^quity,  to  remedy  the  wrongs  of  which 
it  complains.  These  continuing  wrongs  must  work  irreparable  injury, 
and,  as  is  alleged,  the  city,  the  perpetrator  of  the  wrongs,  is  insolvent. 
High,  Inj.  §§  1236,  1275  ;  3  Pom.  Eq.  Jur.  §  1368. 

There  was  no  error  in  overruling  the  demurrer  to  the  bill. 

Affirmed. 


PHIPPS   V.   LONDON   AND   NORTH   WESTERN   RY.    CO. 

Court  of  Appeal,  1892. 

[1892,  2  Q.  B.  229.1] 

This  was  an  appeal  against  so  much  of  an  order  of  the  Railway 
Commissioners  as  dismissed  an  application  made  by  the  executors  and 
trustees  of  the  late  Mr.  Pickering  Phipps,  an  owner  of  iron  furnaces  at 
Duston,  for  an  order  enjoining  the  London  and  North  Western  Rail- 
wav  Company  to  desist  from  giving  undue  and  unreasonable  preference 
or  advantage  to  the  owners  of  iron  furnaces  at  Butlins  and  Islip  in  re- 
spect of  charges  for  the  conveyance  of  pig  iron  to  the  South  Stafford- 
shire mai'kets. 

The  2d  section  of  the  Railway  and  Canal  Traffic  Act,  1854,  enacts 
that  no  railwa}'  companv  ''  shall  make  or  give  any  undue  or  unreason- 
able preference  or  advantage  to  or  in  favor  of  any  particidar  person  or 
compan}-,  or  any  particular  description  of  traffic,  in  any  respect  what- 
soever, nor  shall  any  such  company  subject  any  particular  person  or 
company,  or  any  particular  description  of  traffic,  to  any  undue  or  un- 
reasonable prejudice  or  disadvantage  in  any  respect  whatsoever." 

1  This  case  is  abridged.  —  Ed. 


PHIPPS   V.    LONDON    AND    NORTH    WESTERN   RAILWAY.  421 

The  effect  of  the  27th  and  29th  sections  of  the  Railway  and  Canal 
Traffic  Act,  1888,  is  shortly  as  follows  :  — 

By  section  27,  first,  whenever  it  is  shown  that  any  railway  company 
charge  one  trader  or  class  of  traders,  or  the  traders  iu  any  district, 
lower  tolls,  rates,  or  charges,  for  the  same  or  similar  merchandise  or 
services,  than  they  charge  to  other  traders  or  classes  of  traders,  or 
to  the  traders  in  another  district,  or  make  any  difference  in  treat- 
ment in  respect  of  such  traders,  the  burden  of  proving  that  such  lower 
charge  or  difference  in  treatment  does  not  amount  to  an  undue  prefer- 
ence is  to  lie  on  the  railway  company  ;  and,  secondly,  in  deciding 
whether  a  lower  charge  or  difference  in  treatment  amounts  to  an  undue 
preference,  the  court,  or  the  commissioners,  ma}-,  so  far  as  they  think 
reasonable,  in  addition  to  any  other  considerations  affecting  the  case, 
take  into  consideration  whether  such  lower  charge  or  difference  in  treat- 
ment is  necessary  for  securing  in  the  interests  of  the  public  the  traffic 
in  respect  of  which  it  is  made,  and  whether  the  inequalit\'  cannot  be 
removed  without  undul}'  reducing  the  rates  charged  to  the  complainant 

By  section  29,  any  railwa}'  companv  may,  for  the  purpose  of  fixing 
their  rates  for  the  carriage  of  merchandise  on  their  railway,  group  to- 
gether an}-  number  of  places  in  the  same  district  situated  at  various 
distances  from  any  point  of  destination  or  departure  of  merchandise, 
and  charge  a  uniform  rate  in  respect  thereof,  provided  that  the  dis- 
tances are  not  unreasonable  and  no  undue  preference  is  created. 

The  sidings  of  the  Duston  furnaces  were  situated  on  the  London  and 
North  "Western  Railway  Company's  line  at  a  distance  of  about  sixty 
miles  from  Great  Bridge,  one  of  the  pig  iron  markets  to  the  westward. 
The  sidings  of  the  Butlins  and  Islip  furnaces  were  situated  on  the  same 
line  to  the  east  of  the  Duston  furnaces,  and  at  a  distance  from  the 
market  as  to  Butlins  of  about  sevent\--one  miles,  and  as  to  Islip  of 
about  eighty-two  miles.  Duston  was  dependent  for  its  railway  carriage 
on  the  London  and  North  Western  Company  alone,  but  Butlins  and 
Islip  had  both  of  them  access  not  only  to  the  London  and  North  "West- 
ern, but  also  to  the  Midland  Railway.  The  branch  lines  on  which  the 
Butlins  and  Islip  sidings  were  situate  united  at  a  point  to  the  westward, 
so  that  they  were  nearly  equidistant  from  the  western  markets.  The 
London  and  North  Western  Railway  Company  had,  for  charging  pur- 
poses, grouped  Butlins  and  Islip  together ;  and  although  they  carried 
the  Islip  pig  iron  eleven  miles  further  than  the  Butlins,  they  made  the 
same  charge  from  both  those  places.  The  Midland  Railway  also 
charged  the  same  rate  and  the  same  total  charge  per  ton  for  the  car- 
riage from  Butlins  and  Islip. 

The  London  and  North  Western  Railway  Company,  who  carried  the 
Butlins  pig  iron  eleven  miles  further  and  the  Islip  pig  iron  twenty-two 
miles  further  than  the  Duston  pig  iron,  charged  Butlins  0.95c?.  per  ton 
per  mile,  and  Islip  0.84(7.  per  ton  per  mile,  while  they  charged  Duston 
1.0.5f?.  per  ton  per  mile  ;  so  that  the  total  charge  per  ton  of  pig  iron 
from  Duston  to  the  western  markets  was  bs.  '2d.,  while  the  total  charge 


422  PHIPPS   V.   LONDON    AND    NORTH   WESTERN    RAILWAY. 

per  ton  from  either  Biitlins  or  Islip  was  55.  8t?.  for  the  same  class  of 
mereliandise. 

The  allegation  on  the  part  of  the  plaintiffs  was  that  to  charge  for  the 
carriage  of  pig  iron  from  Butlins  and  Islip  to  the  market  only  6f?.  more 
than  for  the  carriage  from  Duston  was,  having  regard  to  the  difference 
of  distance,  an  undue  preference  by  the  company  in  favor  of  Butlins 
and  Islip  as  compared  with  Duston  ;  and  they  brought  this  application 
before  the  Railway  Commissioners  under  the  2d  section  of  the  Railway 
and  Canal  Traffic  Act,  1854. 

The  case  made  by  the  company  was  that  the  comparatively  lower 
rates  charged  to  Butlins  and  Islip  were  forced  upon  them  by  the  com- 
petition of  the  Midland  Railway  Company  ;  that  the  lower  charge  was 
made  bond  fide,  and  was,  in  the  terms  of  section  27  of  the  Act  of  1888, 
"  necessary  for  the  purpose  of  securing  in  the  interests  of  the  public 
the  traffic  in  respect  of  which  it  was  made  "  ;  that  there  was  still  a  dif- 
ference of  6f?.  a  ton  in  favor  of  the  plaintiffs,  and  that  the  plaintiffs 
had  not  been  injured  by  the  rates  charged  to  Butlins  and  Islip.  And 
they  produced  evidence  to  show  that  the  competition  in  the  South 
Staffordshire  market  was  such  that  a  difference  of  6(/.  a  ton,  or  even 
less,  in  the  price  of  iron  of  the  same  quality,  would  often  be  enough  to 
secure  a  contract. 

The  Railway  Commissioners  (AYills,  J.,  Sir  Frederick  Peel,  and  Vis- 
count Cobham)  held  that  the  London  and  North  Western  Railway 
Company  in  fixing  the  rates  in  question  were  entitled  to  take  into  ac- 
count the  circumstance  that  Butlins  and  Islip  had  access  to  another 
line  of  railway  which  was  in  competition  with  their  own,  and  that  not 
sufficient  case  of  undue  preference  had  been  made  out  against  them. 

The  plaintiffs  appealed. 

Lord  Herschell.  .  .  .  One  class  of  cases  unquestionable  intended 
to  be  covered  b}'  the  section  is  that  in  which  traffic  from  a  distance  of 
a  character  which  competes  with  the  traffic  nearer  the  market  is  charged 
low  rates,  because  unless  such  low  rates  were  charged  it  would  not 
come  into  the  market  at  all.  It  is  certain  unless  some  such  principle 
as  that  were  adopted  a  large  town  would  necessarily  have  its  food 
supplies  greatly  raised  in  price.  So  that,  although  the  object  of  the 
company  is  simply  to  get  the  traffic,  the  public  have  an  interest  in 
their  getting  the  traffic  and  allowing  the  carriage  at  a  rate  which  will 
render  that  traffic  possible,  and  so  bring  the  goods  at  a  cheaper 
rate,  and  one  which  makes  it  possible  for  those  at  a  greater  distance 
from  the  market  to  compete  with  those  situate  nearer  to  it.  That  is 
one  class  of  cases,  no  doubt,  intended  to  be  dealt  with.  I  think  that  is 
made  evident  by  the  fact  that  they  are  to  consider  whether  it  is  neces- 
sary for  the  purpose  of  securing  the  traffic,  and  whether  the  inequality 
cannot  be  removed  without  unduly  reducing  the  rates  charged  to  the 
complainant.  But,  of  course,  it  miglit  be  said  :  Well,  but  the  railway 
company  may  be  obliged,  in  order  to  get  the  traffic,  to  bring  those  dis- 
tant goods  at  a  very  cheap  rate.     But  then  let  them  reduce  all  their 


PHirrS   V.   LONDON    AND    NORTH   WESTERN   KAILWAY.  423 

rates  on  the  intervening  distances.  If  a  man  is  nearer  the  market,  let 
his  rate  bo  brought  down  accordingl}',  and  all  the  rates  will  then  come 
down  excei)t  those  from  the  distant  point.  But  then  it  was  seen  there 
being  two  ways  of  creating  absolute  equality,  one  by  raising  the  lower 
rate,  another  bj'  diminishing  the  higher  rate,  there  were  cases  where 
you  -would  not  secure  the  traffic  at  all  if  you  raised  the  lower  rate,  and 
where,  on  the  other  hand,  if,  as  the  condition  of  securing  the  traffic, 
you  were  to  insist  on  diminishing  the  higher  rate,  it  would  be  so  di- 
minished as  to  be  quite  unfair  to  the  companN",  and  would  be  undul}' 
reducing  the  rates  charged  to  the  complainant.  Therefore,  the  Legis- 
lature said  all  those  matters  ought  to  be  taken  into  account  by  the 
commissioners  or  the  court  so  far  as  the}'  think  it  reasonable. 

I  cannot  but  think  that  a  lower  rate  which  is  charged  from  a  more 
distant  point  by  reason  of  a  competing  route  which  exists  thence,  is 
one  of  the  circumstances  which  may  be  taken  into  account  under  those 
i)rovisions,  and  which  would  fall  within  the  terms  of  the  enactment 
quite  as  much  as  the  case  to  which  I  have  called  attention.  Suppose 
that  to  insist  on  absolutelj'  equal  rates  would  practically  exclude  one 
of  the  two  railway's  from  the  traffic,  it  is  obvious  that  those  members 
of  the  public  who  are  in  the  neighborhood  where  the}'  can  have  the 
benefit  of  this  competition  would  be  prejudiced  by  any  such  proceed- 
ings. And  further,  inasmuch  as  competition  undoubtedly  tends  to 
diminution  of  charge,  and  the  charge  of  carriage  is  one  which  ultimately 
falls  upon  the  consumer,  it  is  obvious  that  the  public  have  an  interest 
in  the  proceedings  under  this  Act  of  Parliament  not  being  so  used  as  to 
destroy  a  traffic  which  can  never  be  secured  but  by  some  such  reduc- 
tion of  charge,  and  the  destruction  of  which  would  be  prejudicial  to  the 
public  by  tending  to  increase  prices.  Therefore  it  seems  to  me  that, 
whether  you  look  at  the  Act  of  1854  by  itself,  or  whether  you  look  at 
it  in  connection  with  the  provisions  of  sub-section  2  of  section  27  of  the 
Act  of  1888,  to  which  I  have  been  referring,  it  is  impossible  to  say  that 
there  is  anything  in  point  of  law  which  compels  the  tribunal  to  exclude 
from  consideration  this  question  of  competing  routes.  I  do  not  go 
further  than  that.  It  is  not  necessary  to  go  further  than  that.  I  am 
not  for  a  moment  suggesting  to  what  extent  it  is  to  weigh.  I  am  not 
suggesting  that  there  may  not  be  such  an  excessive  difference  in  charge 
made  in  cases  of  competition,  as  that  it  would  be  unreasonable  and  un- 
fair when  you  are  looking  at  the  position  of  the  one  trader  as  compared 
with  the  other.  That  may  be  so,  but  all  that  is  matter  for  the  tribunal 
to  take  into  account,  and  certainly  I  think  that  they  are  entitled  to  take 
it  into  account,  and  to  give  weight  to  it  as  far  as  is  reasonable.  If 
that  be  so,  it  is  of  course  sufficient  to  dispose  of  the  present  case. 

Appeal  dismissed} 

1  Compare:  East  Tennessee  R.  R.  v.  Interstate  Commerce  Commission,  183 
U.  S.  1.  — Ed. 


424     CIX.,  NEW  ORL.,  &  TEX.  PAC.  K.  V.  INTERSTATE  COMMERCE  COM. 

CINCINNATI,    NEW   ORLEANS,   &   TEXAS  PACIFIC   RAIL- 
WAY  V.    INTERSTATE    COMMERCE   COMMISSION. 

Supreme  Court  of  the  United  States,  1896. 

[162  U.  S.  184.] 

Mr.  Justice  Siiiras  delivered  the  opinion  of  the  court. 

The  investigation  before  the  Interstate  Commerce  Commission 
resulted  in  an  order  in  the  following  terms:  — 

"  It  is  ordered  and  adjudged  that  the  defendants,  the  Cincinnati, 
New  Orleans,  &  Texas  Pacific  Railway  Company,  the  Western  & 
Atlantic  Railroad  Company,  and  the  Georgia  Railroad  Company  do, 
upon  and  after  the  20th  day  of  July,  1891,  wholly  cease  and  desist 
from  charging  or  receiving  any  greater  compensation,  in  the  aggre- 
gate, for  the  transportation  in  less  than  car  loads  of  buggies,  car- 
riages, and  other  articles  classified  by  them  as  freight  of  first  class, 
for  the  shorter  distance  over  the  line  formed  by  their  several  rail- 
roads from  Cincinnati,  in  the  State  of  Ohio,  to  Social  Circle,  in  the 
State  of  Georgia,  than  they  charge  or  receive  for  the  transportation 
of  said  articles  in  less  than  car  loads  for  the  longer  distance  over  the 
same  line  from  Cincinnati  aforesaid  to  Augusta,  in  the  State  of 
Georgia,  and  that  the  said  defendants,  the  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  Company,  do  also,  from  and  after  the  20th 
day  of  July,  1891,  wholly  cease  and  desist  from  charging  or  receiv- 
ing any  greater  aggregate  compensation  for  the  transportation  of 
buggies,  carriages,  and  other  first-class  articles,  in  less  than  car 
loads,  from  Cincinnati  aforesaid  to  Atlanta,  in  the  State  of  Georgia, 
than  one  dollar  per  hundred  pounds." 

The  decree  of  the  Circuit  Court  of  Appeals,  omitting  unimportant 
details,   was  as  follows:  — 

"  It  is  ordered,  adjudged,  and  decreed  .  .  .  that  this  cause  be 
remanded  to  the  Circuit  Court,  with  instructions  to  enter  a  decree  in 
favor  of  the  complainant,  the  Interstate  Commerce  Commission,  and 
against  the  defendants,  the  Cincinnati,  New  Orleans,  &  Texas  Pa- 
cific Railway  Company,  the  Westei-n  &  Atlantic  Railroad  Company, 
and  the  Georgia  Railroad  Company,  commanding  and  restraining  the 
said  defendants,  their  officers,  servants,  and  attorneys,  to  cease  and 
desist  from  making  any  greater  charge,  in  the  aggregate,  on  buggies, 
carriages,  and  on  all  other  freight  of  the  first  class  carried  in  less 
than  car  loads  from  Cincinnati  to  Social  Circle,  than  they  charge  on 
such  freight  from  Cincinnati  to  Augusta;  that  they  so  desist  and 
refrain  within  five  days  after  the  entry  of  the  decree;  and  in  case 
they,  or  any  of  them,  shall  fail  to  obey  said  order,  condemning  the 
said  defendants,  and  each  of  them,  to  pay  one  hundred  dollars  a  day 
for  every  day  thereafter  they  shall  so  fail;  and  denying  the  relief 
prayed  for  in  relation  to  charges  on  like  freight  from  Cincinnati  to 
Atlanta." 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  K.  V.  INTEESTATE  COMMERCE  COM.     425 

It  will  be  observed  that  in  its  said  decree  the  Circuit  Court  of 
Appeals  adopted  that  portion  of  the  order  of  the  commission  which 
commanded  the  defendants  to  make  no  greater  charge  on  freight  car- 
ried to  Social  Circle  than  on  like  freight  carried  to  Augusta,  and 
disapproved  and  annulled  that  portion  which  commanded  the  Cin- 
cinnati, New  Orleans,  &  Texas  Pacific  Railway  Company  and  the 
Western  &  Atlantic  Railroad  Company  to  desist  from  charging  for 
the  transportation  of  freight  of  like  character  from  Cincinnati  to 
Atlanta  more  than  $1  per  100  pounds. 

The  railroad  companies,  in  their  appeal,  complain  of  the  decree  of 
the  Circuit  Court  of  Appeals  in  so  far  as  it  affirmed  that  portion  of 
the  order  of  the  commission  which  affected  the  rates  charged  to 
Social  Circle.  The  commission,  in  its  appeal,  complains  of  the  de- 
cree, in  that  it  denies  the  relief  prayed  for  in  relation  to  charges  on 
freight  from  Cincinnati  to  Atlanta. 

Tlie  first  question  that  we  have  to  consider  is  whether  the  defend- 
ants, in  transporting  property  from  Cincinnati  to  Social  Circle,  are 
engaged  in  such  transportation  "  under  a  common  control,  manage- 
ment, or  arrangement  for  a  continuous  carriage  or  shipment,"  within 
the  meaning  of  that  language,  as  used  in  the  act  to  regulate 
commerce. 

We  do  not  understand  the  defendants  to  contend  that  the  arrange- 
ment whereby  they  carry  commodities  from  Cincinnati  to  Atlanta  and 
to  Augusta  at  through  rates  which  differ  in  the  aggregate  from  the  aggre- 
gate of  the  local  rates  between  the  same  points,  and  which  through  rates 
are  apportioned  between  them  in  such  a  wa}'  that  each  receives  a  less 
sum  than  their  respective  local  rates,  does  not  bring  them  within  the 
provisions  of  the  statute.  AVhat  they  do  claim  is  that,  as  the  charge 
to  Social  Circle,  being  $1.37  per  hundred  pounds,  is  made  up  of  a  joint 
rate  between  Cincinnati  and  Atlanta,  amounting  to  $1.07  per  hundred 
pounds,  and  30  cents  between  Atlanta  and  Social  Circle,  and  as  the  $1.07 
for  carrying  the  goods  to  Atlanta  is  divided  between  the  Cincinnati,  New 
Orleans,  and  Texas  Pacific  and  the  Western  and  Atlantic,  75ji^  cents  to 
the  former  and  31  y^  cents  to  the  latter,  and  the  remaining  30  cents,  being 
the  amount  of  the  regular  local  rate,  goes  to  the  Georgia  company, 
such  a  method  of  carrying  freight  from  Cincinnati  to  Social  Circle  and 
of  apportioning  the  money  earned,  is  not  a  transportation  of  property 
between  those  points  "  under  a  common  control,  management,  or  ar- 
rangement for  a  continuous  carriage  or  shipment." 

Put  in  another  way,  the  argument  is  that,  as  the  Georgia  Railroad 
Company  is  a  corporation  of  the  State  of  Georgia,  and  as  its  road 
lies  wholly  within  that  State,  and  as  it  exacts  and  receives  its  regular 
local  rate  for  the  transportation  to  Social  Circle,  such  company  is 
not,  as  to  freight  so  carried,  within  the  scope  of  the  act  of  Congress. 

It  IS,  no  doubt,  true  that,  under  the  very  terms  of  the  act,  its  pro- 
visions do  not  apply  to  the  transportation  of  passengers  or  property,  or 
to  the  receiving,  delivering,  storage,  or  handling  of  property  wholly 


426     CIN.,  NEW  OEL.,  &  TEX.  PAC.  K.  V.  INTERSTATE  COMMERCE  COM. 

withiu  one  State,  not  shipped  to  or  from  a  foreign  country  from  or  to 
any  State  or  Territory. 

In  the  answer  filed  by  the  so-called  "  Georgia  Railroad  Company  " 
in  the  proceedings  before  the  comuiission,  there  vras  the  following 
allegation:  "  This  respondent  says  that  while  no  arrangement  exists 
for  a  through  bill  of  lading  from  Cincinnati  to  Social  Circle,  as  a 
matter  of  fact  the  shipment  from  Cincinnati  to  Social  Circle  by  the 
petitioner  was  made  on  a  through  bill  of  lading,  the  rate  of  which 
was  fixed  by  adding  this  respondent's  local  rate  from  Atlanta  to 
Social  Circle  to  the  through  rate  from  Cincinnati  to  Atlanta." 

The  answer  of  the  Louisville  &  Nashville  Railroad  Company  and 
Central  Railroad  &  Banking  Company  of  Georgia,  which  companies, 
as  operating  the  Georgia  railroads,  were  sued  by  the  name  of  the 
"  Georgia  Railroad  Company,"  in  the  Circuit  Court  of  the  United 
States,  contained  the  following  statement:  — 

"  So  far  as  these  respondents  are  concerned,  they  will  state  that 
on  July  3,  1891,  E.  R.  Dorsey,  general  freight  agent  of  said  Georgia 
Railroad  Company,  issued  a  circular  to  its  connections,  earnestly 
requesting  them  that  thereafter,  in  issuing  bills  of  lading  to  local 
stations  on  the  Georgia  Railroad,  no  rates  be  inserted  east  of  At- 
lanta, except  to  Athens,  Gainesville,  Washington,  Milledgeville, 
Augusta,  or  points  beyond.  Neither  before  nor  since  the  date  of 
said  circular  have  these  respondents,  operating  said  Georgia  Rail- 
road, been  in  any  way  parties  to  such  through  rates,  if  any,  as  may 
have  been  quoted,  from  Cincinnati  or  other  Western  points  to  any  of 
the  strictly  local  stations  on  said  Georgia  Railroad.  The  stations 
excepted  in  said  circular  are  not  strictly  local  stations.  Both  be- 
fore and  since  the  date  of  said  circular  respondents  have  received  at 
Atlanta  east-bound  freight  destined  to  strictly  local  stations  on  the 
Georgia  Railroad,  and  have  charged  full  local  rates  to  such  stations, 
said  rates  being  such  as  they  were  authorized  to  charge  by  the 
Georgia  Railroad  commission.  Said  rates  are  reasonably  low,  and 
are  charged  to  all  persons  alike,   without  discrimination." 

Upon  this  part  of  the  case  the  conclusion  of  the  Circuit  Court  was 
that  the  traffic  from  Cincinnati  to  Social  Circle,  in  issue  as  to  the 
Georgia  Railroad  Company,  was  local,  and  that  that  company  was 
not,  on  the  facts  presented,  made  a  party  to  a  joint  or  common 
arrangement  such  as  make  the  traffic  to  Social  Circle  subject  to  the 
control  of  the  Interstate  Commerce  Commission. 

We  are  unable  to  accept  this  conclusion.  It  may  be  true  that  the 
Georgia  Railroad  Company,  as  a  corporation  of  the  State  of  Georgia, 
and  whose  entire  road  is  witliin  that  State,  may  not  be  legally  com- 
pelled to  submit  itself  to  the  provisions  of  the  act  of  Congress,  even 
when  carrying,  between  points  in  Georgia,  freight  that  has  been 
brought  from  another  State.  It  may  be  that  if,  in  the  present  case, 
the  goods  of  the  James  &  Maj'er  Buggy  Company  had  reached  At- 
lanta, and  there  and  then,  for  the  first  time,  and  independently  of 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM.    427 

any  existing  arrangement  with  the  railroad  companies  that  had  trans- 
ported them  thither,  the  Georgia  Railroad  Company  was  asked  to 
transport  them,  whether  to  Augusta  or  to  Social  Circle,  that  com- 
pany could  undertake  such  transportation  free  from  the  control  of 
any  supervision  except  that  of  the  State  of  Georgia.  But  when  the 
Georgia  Railroad  Company  enters  into  the  carriage  of  foreign  freight, 
by  agreering  to  receive  the  goods  by  virtue  of  foreign  through  bills  of 
lading,  and  to  participate  in  through  rates  and  charges,  it  thereby 
becomes  part  of  a  continuous  line,  not  made  by  a  consolidation  with 
the  foreign  companies,  but  made  by  an  arrangement  for  the  continu- 
ous carriage  or  shipment  from  one  State  to  another,  and  thus  becomes 
amenable  to  the  federal  act,  in  respect  to  such  interstate  commerce. 
We  do  not  perceive  that  the  Georgia  Railroad  Company  escaped  from 
the  supervision  of  the  commission  by  requesting  the  foreign  com- 
panies not  to  name  or  fix  any  rates  for  that  part  of  the  transporta- 
tion which  took  place  in  the  State  of  Georgia  when  the  goods  were 
shipped  to  local  points  on  its  road.  It  still  left  its  arrangement  to 
stand  with  respect  to  its  terminus  at  Augusta  and  to  other  desig- 
nated points.  Having  elected  to  enter  into  the  carriage  of  interstate 
freights,  and  thus  subjected  itself  to  the  control  of  the  commission, 
it  would  not  be  competent  for  the  company  to  limit  that  control,  in 
respect  to  foreign  traffic,  to  certain  points  on  its  road,  and  exclude 
other  points. 

The  Circuit  Court  sought  to  fortify  its  position  in  this  regard  by 
citing  the  opinion  of  Mr.  Justice  Brewer  in  the  case  of  Chicago  & 
Northwestern  Railroad  v.  Osborne,  10  U.  S.  App.  430,  when  that 
case  was  before  the  United  States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit.  It  is  quite  true  that  the  opinion  was  expressed 
that  a  railroad  company  incorporated  by  and  doing  business  wholly 
wnthin  one  State  cannot  be  compelled  to  agree  to  a  common  control, 
management,  or  arrangement  with  connecting  companies,  and  thus  be 
deprived  of  its  rights  and  powers  as  to  rates  on  its  own  road.  It 
was  also  said  that  it  did  not  follow  that,  even  if  such  a  State  corpo- 
ration did  agree  to  form  a  continuous  line  for  carrying  foreign 
freight  at  a  through  rate,  it  was  tbereby  prevented  from  charging 
its  ordinary'  local  rates  for  domestic  traffic  originating  within  the 
State. 

Thus  understood,  there  is  nothing  in  that  case  which  we  need  dis- 
agree with,  in  disapproving  the  Circuit  Court's  view  in  the  present 
case.  All  we  wish  to  be  understood  to  hold  is  that  when  goods  are 
shipped  under  a  through  bill  of  lading  from  a  point  in  one  State  to  a 
point  in  another,  are  received  in  transit  by  a  State  common  carrier, 
under  a  conventional  division  of  the  charges,  such  carrier  must  be 
deemed  to  have  subjected  its  road  to  an  arrangement  for  a  continuous 
carriage  or  shipment,  within  the  meaning  of  the  act  to  regulate  com- 
merce. When  we  speak  of  a  "  through  bill  of  lading,"  we  are  refer- 
ring to  the  usual  method  in  use  by  connecting  companies,  and  must 


428     CIN.,  NEW  ORL.,  &  TEX.  PAC.  R.  V.  INTERSTATE    COMMERCE  COM. 

not  be  understood  to  imply  that  a  common  control,  management,  or 
arrangement  might  not  be  otherwise  manifested. 

Subject,  then,  as  we  hold  the  Georgia  Railroad  Company  is,  under 
the  facts  found,  to  the  provisions  of  the  act  to  regulate  commerce,  in 
respect  to  its  interstate  freight,  it  follows,  as  we  think,  that  it  was 
within  the  jurisdiction  of  the  commission  to  consider  whether  the 
said  company,  in  charging  a  higher  rate  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance,  was  or  was  not  transport- 
ing property,  in  transit  between  States,  under  "  substantially  similar 
circumstances  and  conditions." 

We  do  not  say  that  under  no  circumstances  and  conditions  would 
it  be  lawful,  when  engaged  in  the  transportation  of  foreign  freight, 
for  a  carrier  to  charge  more  for  a  shorter  than  a  longer  distance  on 
its  own  line;  but  it  is  for  the  tribunal  appointed  to  enforce  the  pro- 
visions of  the  statute,  whether  the  commission  or  the  court,  to  con- 
sider whether  the  existing  circumstances  and  conditions  were  or  were 
not  substantially  similar. 

It  has  been  forcibly  argued  that  in  the  present  case  the  commission 
did  not  give  due  weight  to  the  facts  that  tended  to  show  that  the  cir- 
cumstances and  conditions  were  so  dissimilar  as  to  justify  the  rates 
charged.  But  the  question  was  one  of  fact,  peculiarly  within  the 
province  of  the  commission,  whose  conclusions  have  been  accepted 
and  approved  by  the  Circuit  Court  of  Appeals,  and  we  find  nothing 
in  the  record  to  make  it  our  duty  to  draw  a  different  conclusion. 

We  understand  the  record  as  disclosing  that  the  commission,  in 
view  of  the  circumstances  and  conditions  in  which  the  defendants 
were  operating,  did  not  disturb  the  rates  agreed  upon,  whereby  the 
same  charge  was  made  to  Augusta  as  to  Atlanta, — a  less  distant 
point.  Some  observations  made  by  the  commission,  in  its  report, 
on  the  nature  of  the  circumstances  and  conditions  which  would  jus- 
tify a  greater  charge  for  the  shorter  distance,  gave  occasion  for  an 
interesting  discussion  by  the  respective  counsel.  But  it  is  not  neces- 
sary for  us,  in  the  present  case,  to  express  any  opinion  on  a  subject 
so  full  of  difficulty. 

These  views  lead  to  an  affirmance  of  the  decree  of  the  Circuit 
Court  of  Appeals,  in  so  far  as  the  appeal  of  the  defendant  companies 
is  concerned,  and  we  are  brought  to  a  consideration  of  the  appeal  by 
the  Interstate  Commerce  Commission. 

That  appeal  preseuts  the  question  whether  the  Circuit  Court  of 
Appeals  erred  in  its  holding  in  respect  to  the  action  of  the  Interstate 
Commerce  Commission,  in  fixing  a  maximum  rate  of  charges  for  the 
transportation  of  freight  of  the  first  class  in  less  than  car  loads  from 
Cincinnati  to  Atlanta. 

This  question  may  be  regarded  as  twofold,  and  is  so  presented  in 
the  assignment  of  error  filed  on  behalf  of  the  commission,  namely: 
Did  the  court  err  in  not  holding  that  in  point  of  law  the  Interstate 


CIN.,  NEW  ORL.,  &  TEX.  PAC.  R.  V.  INTERSTATE  COMMERCE  COM.       429 

Commerce  Commission  had  power  to  fix  a  maximum  rate?  and,  if 
such  power  existed,  did  the  court  err  in  not  holding  that  the  evi- 
dence justified  the  rate  fixed  by  the  commission,  and  not  decreeing 
accordingly  ? 

It  is  stated  by  the  commission,  in  its  report,  that  "  the  only  testi- 
mony offered  or  heard  as  to  the  reasonableness  of  the  rate  to  Atlanta 
in  question  was  that  of  the  Vice-President  of  the  Cincinnati,  New 
Orleans,  &  Texas  Pacific  Company,  whose  deposition  was  taken  at 
the  instance  of  the  company."  And  in  acting  upon  the  subject  the 
commission  say :  — 

"  This  statement  or  estimate  of  the  rate  from  Cincinnati  to  Atlanta 
(Si. 01  per  hundred  pounds  in  less  than  car  loads),  we  believe,  is  fully 
as  high  as  it  may  reasonably  be,  if  not  higher  than  it  should  be;  but, 
without  more  thorough  investigation  than  it  is  now  practicable  to 
make,  we  do  not  feel  justified  in  determining  upon  a  more  moderate 
rate  than  $1  per  hundred  pounds  of  first-class  freight  in  less  than  car 
loads.  The  rate  on  this  freight  from  Cincinnati  to  Birmingham, 
Alabama,  is  89  cents,  as  compared  with  $1.07  to  Atlanta,  the  dis- 
tances being  substantially  the  same.  There  is  apparently  nothing  in 
the  nature  and  character  of  the  service  to  justify  such  difference,  or 
in  fact  to  warrant  any  substantial  variance  in  the  Atlanta  and  Bir- 
mingham rate  from  Cincinnati." 

But  when  the  commission  filed  its  petition  in  the  Circuit  Court  of 
the  United  States,  seeking  to  enforce  compliance  with  the  rate  of  $1 
per  100  pounds,  as  fixed  by  the  commission,  the  railroad  companies, 
in  their  answers,  alleged  that  "  the  rate  charged  to  Atlanta,  namely, 
$1.07  per  hundred  pounds,  was  fixed  by  active  competition  between 
various  transportation  lines,  and  was  reasonably  low." 

Under  this  issue  evidence  was  taken,  and  we  learn  from  the  opin- 
ion of  the  Circuit  Court  that,  as  to  the  rate  to  Birmingham,  there  was 
evidence  before  the  court  which  evidently  was  not  before  the  com- 
mission, namely,  that  the  rate  from  Cincinnati  to  Birmingham,  which 
seems  previously  to  have  been  $1.08,  was  forced  down  to  89  cents  by 
the  building  of  the  Kansas  City,  Memphis,  &  Birmingham  Railroad, 
which  new  road  caused  the  establishment  of  a  rate  of  75  cents  from 
Memphis  to  Birmingham,  and,  by  reason  of  water  route  to  the  North- 
west, such  competition  was  brought  about  that  the  present  rate  of  89 
cents  from  Cincinnati  to  Birmingham  was  the  result. 

Without  stating  the  reasoning  of  the  Circuit  Court,  which  will  be 
found  in  the  report  of  the  case  in  64  Fed.  981,  the  conclusion  reached 
was  that  the  evidence  offered  in  that  court  was  sufficient  to  overcome 
any  prima  facie  case  that  may  have  been  made  by  the  findings  of  the 
commission,  and  that  the  rate  complained  of  was  not  unreasonable. 

As  already  stated,  the  Circuit  Court  of  Appeals  adopted  the  views 
of  the  Circuit  Court  in  respect  to  the  reasonableness  of  the  rate 
charged  on  first-class  freight  carried  on  defendants'  line  from  Cin- 
cinnati to  Atlanta;  and,  as  both  courts  found  the  existing  rate  to 


430       CIN.,  NEW  ORL.,  &  TEX.  PAC.  E.  V.  INTEESTATE  COMMERCE  COM. 

have  been  reasonable,  we  do  not  feel  disposed  to  review  their  finding 
on  that  matter  of  fact. 

We  think  this  a  proper  occasion  to  express  disapproval  of  such  a 
method  of  procedure  on  the  part  of  the  railroad  companies  as  should 
lead  them  to  withhold  the  larger  part  of  their  evidence  from  the  com- 
mission, and  first  adduce  it  in  the  Circuit  Court.  The  commission  is 
an  administrative  board,  and  the  courts  are  only  to  be  resorted  to 
when  the  commission  prefers  to  enforce  the  provisions  of  the  statute 
by  a  direct  proceeding  in  the  court,  or  when  the  orders  of  the  com- 
mission have  been  disregarded.  The  theory  of  the  act  evidently  is, 
as  shown  by  the  provision,  that  the  findings  of  the  commission  shall 
be  regarded  slq  prima  facie  evidence,  that  the  facts  of  the  case  are  to 
be  disclosed  before  the  commission.  We  do  not  mean,  of  course, 
that  either  party,  in  a  trial  in  the  court,  is  to  be  restricted  to  the 
evidence  that  was  before  the  commission,  but  that  the  purposes  of  the 
act  call  for  a  full  inquiry  by  the  commission  into  all  the  circumstances 
and  conditions  pertinent  to  the  questions  involved. 

Whether  Congress  intended  to  confer  upon  the  Interstate  Commerce 
Commission  the  power  to  itself  fix  rates  was  mooted  in  the  courts 
below,  and  is  discussed  in  the  briefs  of  counsel. 

We  do  not  find  any  provision  of  the  act  that  expressly,  or  by 
necessary  implication,  confers  such  a  power. 

It  is  argued  on  behalf  of  the  commission  that  the  power  to  pass 
upon  the  reasonableness  of  existing  rates  implies  a  right  to  prescribe 
rates.  This  is  not  necessarily  so.  The  reasonableness  of  the  rate, 
in  a  given  case,  depends  on  the  facts,  and  the  function  of  the  com- 
mission is  to  consider  these  facts  and  give  them  their  proper  weight. 
If  the  commission,  instead  of  withholding  judgment  in  such  a  matter 
until  an  issue  shall  be  made  and  the  facts  found,  itself  fixes  a  rate, 
that  rate  is  prejudged  by  the  commission  to  be  reasonable. 

We  prefer  to  adopt  the  view  expressed  by  the  late  Justice  Jackson, 
when  Circuit  Judge,  in  the  case  of  Interstate  Commerce  Commission 
V.  Baltimore  &  Ohio  Railroad  Co.,  43  Fed.  37,  and  whose  judgment 
was  affirmed  by  this  court,  145  U.  S.  263:  — 

"  Subject  to  the  two  leading  prohibitions  that  their  charges  shall 
not  be  unjust  or  unreasonable,  and  that  they  shall  not  unjustly  dis- 
criminate, so  as  to  give  undue  preference  or  disadvantage  to  persons 
or  traffic  similarly  circumstanced,  the  act  to  regulate  commerce  leaves 
common  carriers  as  they  were  at  the  common  law,  —  free  to  make 
special  contracts  looking  to  the  increase  of  their  business,  to  classify 
their  traffic,  to  adjust  and  apportion  their  rates  so  as  to  meet  the 
necessities  of  commerce,  and  generally  to  manage  their  important 
interests  upon  the  same  principles  which  are  regarded  as  sound,  and 
adopted  in  other  trades  and  pursuits." 

The  decree  of  the  Circuit  Court  of  Appeals  is  affirmed. 


INTERST.  COMMERCE  COM.  V.  DETROIT,  GRAND  HAVEN,  ETC.  R.      431 


INTERSTATE   COMMERCE   COMMISSION  v.    DETROIT, 
GRAND   HAVEN,    &   MILWAUKEE   RAILWAY. 

Supreme  Court  of  the  United  States,  1897. 

[167  U.  S.  633.] 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. ^ 

The  petition  of  Stone  &  Carten,  retail  merchants  at  Ionia,  addressed 
to  the  Interstate  Commerce  Commission,  alleged  violations  by  the 
railway  company  of  sections  2,  3,  and  4  of  the  Interstate  Commerce 
Act. 

The  opinion  of  the  commission  sustained  the  petition  avowedly 
under  section  4  of  the  act.   .  .  . 

The  sole  complaint  urged  is  that  the  railway  company  carts  goods 
to  and  from  its  station  or  warehouse  at  Grand  Rapids  without  charg- 
ing its  customers  for  such  service,  while  its  customers  at  Ionia  are 
left  themselves  to  bring  their  goods  to  and  take  them  from  the  com- 
pany's warehouse,  and  that,  in  its  schedules  posted  and  published  at 
Grand  Rapids,  there  is  no  notice  or  statement  by  the  company  of  the 
fact  that  it  furnishes  such  cartage  free  of  charge.  These  acts  are 
claimed  to  constitute  violations  of  sections  4  and  6  of  the  Interstate 
Commerce  Act.   .  .  . 

For  a  period  of  upward  of  twenty-five  years  before  these  proceed- 
ings this  company  has  openly  and  notoriously,  at  its  own  expense, 
transferred  goods  and  merchandise  to  and  from  its  warehouse  to  the 
places  of  business  of  its  patrons  in  the  city  of  Grand  Rapids.  The 
station  of  the  company,  though  within  the  limits  of  the  city,  is  dis- 
tant, on  an  average,  1^  miles  from  the  business  sections  of  the  city 
where  the  traffic  of  the  places  tributary  to  the  company's  road  origi- 
nates and  terminates.   .  .  . 

Under  the  facts  as  found  and  the  concessions  as  made,  the  Com- 
mission's proposition  may  be  thus  stated.  There  is,  conventionally, 
no  difference,  as  to  distance,  between  Ionia  and  Grand  Rapids,  and 
the  same  rates  and  charges  for  like  kinds  of  property  are  properly 
made  in  the  case  of  both  cities.     But,  as  there  is  an  average  distance 

*  Fart  of  the  opiuiou  is  omitted. 


432       INTERST.  COMMERCE  COM.  V.  DETROIT,  GRAND  HAVEN,  ETC.  R. 

of  li  of  a  mile  between  the  station  at  Grand  Rapids  and  the  ware- 
houses  and  offices  of  the  shippers  and  consignees,  such  avernge  dis- 
tance must  be  regarded  as  part  of  the  railway  company's  line,  if  the 
company  furnishes  transportation  facilities  for  such  distance;  and  if 
it  refrains  from  making  any  charge  for  such  transportation  facilities, 
and  fails  to  furnish  the  same  facilities  at  Ionia,  this  is  equivalent  to 
charging  and  receiving  a  greater  compensation  in  the  aggregate  for 
the  transportation  of  a  like  kind  of  property  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance. 

The  Circuit  Court  of  Appeals  was  of  opinion  that  this  proposition 
is  based  on  a  false  assumption,  namely,  that  the  distance  between 
the  company's  station  and  the  warehouses  of  the  shippers  and  con- 
signees is  part  of  the  company's  railway  line,  or  is  made  such  by  the 
act  of  the  company  in  furnishing  vehicles  and  men  to  transport  the 
goods  to  points  throughout  the  city  of  Grand  Rapids.  The  view  of 
that  court  was  that  the  railway  transportation  ends  when  the  goods 
reach  the  terminus  or  station  and  are  there  unshipped,  and  that  any- 
thing the  company  does  afterwards,  in  the  way  of  land  transporta- 
tion, is  a  new  and  distinct  service,  not  embraced  in  the  contract  for 
railway  carriage.  The  court,  in  a  learned  opinion  by  District  Judge 
Hammond,  enforced  this  view  by  a  reference  to  numerous  English 
cases,  which  hold  that  the  collecting  and  delivery  of  goods  is  a  sepa- 
rate and  distinct  business  from  that  of  railway  carriage;  that,  when 
railroad  companies  undertake  to  do  for  themselves  this  separate 
business,  they  thereby  are  subjected  to  certain  statutory  regulations 
and  restrictions  in  respect  to  such  separate  business;  and  that  they 
cannot  avoid  such  restrictions  by  .making  a  consolidated  charge  for 
the  railway  and  cartage  service.     43  U.  S.  App.  308. 

We  agree  with  the  Circuit  Court  of  Appeals  in  thinking  that  the 
fourth  section  of  the  Interstate  Commerce  Act  has  in  view  only  the 
transportation  of  passengers  and  property  by  rail,  and  that,  when 
the  passengers  and  property  reached  and  were  discharged  from  the 
cars  at  the  company's  warehouse  or  station  at  Grand  Rapids,  for  the 
same  charges  as  those  received  for  similar  service  at  Ionia,  the  duties 
and  obligations  cast  upon  this  company  by  the  fourth  section  were 
fulfilled  and  satisfied.  The  subsequent  history  of  the  passengers  and 
property,  whether  carried  to  their  places  of  abode  and  of  business  by 
their  own  vehicles,  or  by  those  furnished  by  the  railway  company, 
would  not  concern  the  Interstate  Commerce  Commission.   . 

The  decree  of  the  Circuit  Court  of  Appeals  is  affirmed. 


INTERSTATE    COMMERCE    COM.    V.   ALABAMA   MID.    RAILWAY.      433 


INTERSTATE   COMMERCE   COMMISSION  v.    ALABAMA 
MIDLAND   RAILWAY. 

Supreme  Court  of  the  United  States,  1897. 

[168  U.  S.  144.] 

On  the  27th  day  of  June,  1892,  the  board  of  ti-ade  of  Troy,  Ala., 
filed  a  complaint  before  the  Interstate  Commerce  Commission,  at 
Washington,  D.  C,  against  the  Alabama  Midland  Railway  Company 
and  the  Georgia  Central  Railroad  Company  and  their  connections; 
claiming  that,  in  the  rates  charged  for  transportation  of  property  by 
the  railroad  companies  mentioned,  and  their  connecting  lines,  there 
was  a  discrimination  against  the  town  of  Troy,  in  violation  of  the 
terms  and  provisions  of  the  Interstate  Commerce  Act  of  Congress  of 
1887. 

The  general  ground  of  complaint  was  that,  Troy  being  in  active 
competition  for  business  with  Montgomery,  the  defendant  lines  of 
railway  unjustly  discriminate  in  their  rates  against  the  former,  and 
gave  the  latter  an  undue  preference  or  advantage,  in  respect  to  certain 
commodities  and  classes  of  traffic.^  .  .  . 

The  commission,  having  heard  this  complaint  on  the  evidence 
theretofore  taken,  ordered,  on  the  15th  day  of  August,  1893,  the 
roads  participating  in  the  traffic  involved  in  this  case  "  to  cease 
and  desist"  from  charging,  demanding,  collecting,  or  receiving  any 
greater  compensation  in  the  aggregate  for  services  rendered  in  such 
transportation  than  is  specified.   .  .   . 

The  defendants  having  failed  to  heed  these  orders,  the  commission 
thereupon  filed  this  bill  of  complaint  in  the  Circuit  Court  of  the 
United  States  for  the  Middle  District  of  Alabama,  in  equity,  to  com- 
pel obedience  to  the  same. 

Mr.  Justice  Shiras  delivered  the  opinion  of  the  court. 

Several  of  the  assignments  of  error  complain  of  the  action  of  the 
Circuit  Court  of  Appeals  in  not  rendering  a  decree  for  the  enforce- 
ment of  those  portions  of  the  order  of  the  Interstate  Commerce  Com- 
mission which  prescribed  rates  to  be  thereafter  charged  by  the 
defendant  companies  for  services  performed  in  the  transportation  of 
goods. 

Discussion  of  those  assignments  is  rendered  unnecessary  by  the 
recent  decisions  of  this  court,  wherein  it  has  been  held,  after  elabo- 
rate argument,  that  Congress  has  not  conferred  upon  the  Interstate 
Commerce  Commission  the  legislative  power  of  prescribing  rates, 
either  maximum,  or  minimum,  or  absolute,  and  that,  as  it  did  not  give 
the  express  power  to  the  commission,  it  did  not  intend  to  secure  the 
same  result  indirectly,  by  empowering  that  tribunal,  after  having 

1  Part  of  tlie  statement  of  facts  is  omitted.  —  Ed. 

28 


434      INTERSTATE    COMMERCE    COM.    V.   ALABAMA    MID.    RAILWAY. 

determined  what,  in  reference  to  the  past,  were  reasonable  and  just 
rates,  to  obtain  from  the  courts  a  peremptory  order  that  in  the  future 
the  railroad  companies  should  follow  the  rates  thus  determined  to 
have  been  in  the  past  reasonable  and  just.  Cincinnati,  New  Orleans, 
&  Texas  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.  S.  184;  Interstate  Commerce  Commission  v.  Cincinnati,  New 
Orleans,   &  Texas  Pacific  Railway,   167  U.   S.  479. 

Errors  are  likewise  assigned  to  the  action  of  the  court  in  having 
failed  and  refused  to  affirm  and  enforce  the  report  and  opinion  of  the 
commission,  wherein  it  was  found  and  decided,  among  other  things, 
that  the  defendant  common  carriers  which  participate  in  the  trans- 
portation of  class  goods  to  Troy  from  Louisville,  St.  Louis,  and 
Cincinnati,  and  from  New  York,  Baltimore,  and  other  Northeastern 
points,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  phosphate  rock  from  South  Carolina  and  Florida  to 
Troy,  and  the  defendants,  common  carriers  which  participate  in  the 
transportation  of  cotton  from  Troy  to  the  ports  of  New  Orleans, 
Brunswick,  Savannah,  Charleston,  West  Point,  or  Norfolk,  as  local 
shipments,  or  for  export,  have  made  greater  charges,  under  substan- 
tially similar  circumstances  and  conditions,  for  the  shorter  distance 
to  or  from  Troy  than  for  longer  distances  over  the  same  lines  in  the 
same  direction,  and  have  unjustly  discriminated  in  rates  against 
Troy,  and  subjected  said  place  and  dealers  and  shippers  therein  to 
undue  and  unreasonable  prejudice  and  disadvantage  in  favor  of 
Montgomery,  Eufaula,  Columbus,  and  other  places  and  localities, 
and  dealers  and  shippers  therein,  in  violation  of  the  provisions  of 
the  act  to  regulate  commerce. 

Whether  competition  between  lines  of  transportation  to  Mont- 
gomery, Eufaula,  and  Columbus  justifies  the  giving  to  those  cities 
a  preference  or  advantage  in  rates  over  Troy,  and,  if  so,  whether 
such  a  state  of  facts  justifies  a  departure  from  equality  of  rates 
without  authority  from  the  Interstate  Commerce  Commission,  under 
the  proviso  to  the  fourth  section  of  the  act,  are  questions  of  con- 
struction of  the  statute,  and  are  to  be  determined  before  we  reach  the 
question  of  fact  in  this  case. 

It  is  contended  in  the  briefs  filed  on  behalf  of  the  Interstate  Com- 
mission that  the  existence  of  rival  lines  of  transportation,  and  con- 
sequently of  competition  for  the  traffic,  are  not  facts  to  be  considered 
by  the  commission  or  by  the  courts  when  determining  whether  prop- 
erty transported  over  the  same  line  is  carried  under  "  substantially 
similar  circumstances  and  conditions,"  as  that  phrase  is  found  in 
the  fourth  section  of  the  act. 

Such,  evidently,  was  not  the  construction  put  upon  this  provision 
of  the  statute  by  the  Commission  itself  in  the  present  case,  for  the 
record  discloses  that  the  Commission  made  some  allowance  for  the 
alleged  dissimilarity  of  circumstances  and  conditions,  arising  out  of 
competition  and  situation,  as  affecting  transportation  to  Montgomery 


INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY.      435 

and  Tro}^,  respectively,  and  that  among  the  errors  assigned  is  one 
complaining  that  the  court  erred  in  not  holding  that  the  rates  pre- 
scribed by  the  commission  in  its  order  made  due  allowance  for  such 
dissimilarity. 

So,  too,  in  In  re  Louisville  &  Nashville  Railroad,  1  Interst.  Com- 
merce Com.  R.  31,  78,  in  discussing  the  long  and  short  haul  clause,  it 
was  said  by  the  Commission,  per  Judge  Cooley,  that  "  it  is  impos- 
sible to  resist  the  conclusion  that  in  finally  rejecting  the  '  long  and 
short  haul  clause '  of  the  house  bill,  which  prescribed  an  indexible 
rule,  not  to  be  departed  from  in  any  case,  and  retaining  in  substance 
the  fourth  section  as  it  had  passed  the  Senate,  both  houses  under- 
stood that  they  Avere  not  adopting  a  measure  of  strict  prohibition  in 
respect  to  charging  more  for  the  shorter  than  for  the  longer  distance, 
but  that  they  were,  instead,  leaving  the  door  open  for  exceptions  in 
certain  cases,  and,  among  others,  in  cases  where  the  circumstances 
and  conditions  of  the  traffic  were  affected  by  the  element  of  competi- 
tion, and  where  exceptions  might  be  a  necessity  if  the  competition 
was  to  continue.  And  water  competition  was,  beyond  doubt,  espe- 
cially in  view." 

It  is  no  doubt  true  that  in  a  later  case  (Railroad  Commission  of 
Georgia  v.  Clyde  S.  S.  Co.,  5  Interst.  Commerce  Com.  R.  326)  the 
commission  somewhat  modified  their  holding  in  the  Louisville  & 
Nashville  Railroad  Company  Case,  just  cited,  by  attempting  to 
restrict  the  competition  that  it  is  allowable  to  consider  to  the  cases 
of  competition  with  water  carriers,  competition  with  foreign  rail- 
roads, and  competition  with  railroad  lines  w-holly  in  a  single  Slate; 
but  the  principle  that  competition  in  such  cases  is  to  be  considered 
is  affirmed. 

That  competition  is  one  of  the  most  obvious  and  effective  circum- 
stances that  make  the  conditions  under  w'hich  a  long  and  short  haul 
is  performed  substantially  dissimilar,  and  as  such  must  have  been 
in  the  contemplation  of  Congress  in  the  passage  of  the  act  to  regu- 
late commerce,  has  been  held  by  many  of  the  Circuit  Courts.  It  is 
sufficient  to  cite  a  few  of  the  number:  Ex  parte  Koehler,  31  Fed. 
315;  Missouri  Pacific  Ry.  u.  Texas  &  Pacific  Ry.,  Id.  862;  Inter- 
state Commerce  Commission  v.  Atchison,  T.  &  S.  F.  Railroad,  50 
Fed.  295;  Interstate  Commerce  Commission  v.  New  Orleans  &  Texas 
Pacific  Railroad,  56  Fed.  925,  943;  Behlmer  v.  Louisville  &  Nash- 
ville Railroad,  71  Fed.  835;  Interstate  Commerce  Commission  v. 
Louisville  &  Nashville  Railroad,  73  Fed.  409. 

In  construing  statutory  provisions  forbidding  railway  companies 
from  giving  any  undue  or  unreasonable  preference  or  advantage  to 
or  in  favor  of  any  particular  person  or  company,  or  any  particular 
description  of  traffic,  in  any  respect  whatever,  the  English  courts 
have  held,  after  full  consideration,  that  competition  between  rival 
lines  is  a  fact  to  be  considered,  and  that  a  preference  or  advantage 
thence  arising  is  not  necessarily  undue  or  unreasonable.      Denaby 


436      INTERSTATE   COMMERCE    COM.    V.   ALABAMA   MID.    RAILWAY. 

Main  Colliery  Co.  r.  Manchester,  Sheffield,  &  Lincolnshire  Railway, 
11  App.  Cas.  97;  Phipps  v.  Loudon  &  Northwestern  Railway,  [1892] 
2  Q.  B.  229. 

But  the  question  whether  competition,  as  affecting  rates,  is  an 
element  for  the  Commission  and  the  courts  to  consider  in  applying 
the  provisions  of  the  act  to  regulate  commerce,  is  not  an  open  ques- 
tion in  this  court. 

In  Interstate  Commerce  Commission  v,  Baltimore  &  Ohio  Rail- 
road, 145  U.  S.  263,  it  was  said,  approving  observations  made  by 
Jackson,  Circuit  Judge  (43  Fed.  37),  that  the  act  to  regulate  com- 
merce was  "  not  designed  to  prevent  competition  between  different 
roads,  or  to  interfere  with  the  customary  arrangements  made  by  rail- 
way companies  for  reduced  fares  in  consideration  of  increased  mileage, 
where  such  reduction  did  not  operate  as  an  unjust  discrimination 
against  other  persons  travelling  over  the  road;  in  other  words,  it  was 
not  intended  to  ignore  the  principle  that  one  can  sell  at  wholesale 
cheaper  than  at  retail;  that  it  is  not  all  discriminations  or  prefer- 
ences that  fall  within  the  inhibitions  of  the  statute, — only  such  as 
are  unjust  or  unreasonable";  and,  accordingly,  it  was  held  that  the 
issue  by  a  railway  company,  engaged  in  interstate  commerce,  of  a 
"party-rate  ticket"  for  the  transportation  of  ten  or  more  persons 
from  a  place  situated  in  one  State  or  Territory  to  a  place  situated  in 
another  State  or  Territory,  at  a  rate  less  than  that  charged  to  a  single 
individual  for  a  like  transportation  on  the  same  trip,  does  not  thereby 
make  "  an  unjust  or  unreasonable  charge  "  against  such  individual, 
within  the  meaning  of  the  first  section  of  the  act  to  regulate  com- 
merce, nor  make  "  an  unjust  discrimination  "  against  him,  within  the 
meaning  of  the  second  section,  nor  give  "  an  undue  or  unreasonable 
preference  or  advantage  "  to  the  purchasers  of  the  party-rate  ticket, 
within  the  meaning  of  the  third  section. 

In  Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission, 
162  U.  S.  197,  it  was  held  that,  "  in  passing  upon  questions  arising 
under  the  act,  the  tribunal  appointed  to  enforce  its  provisions, 
whether  the  commission  or  the  courts,  is  empowered  to  fully  con- 
sider all  the  circumstances  and  conditions  that  reasonably  apply  to 
the  situation,  and  that,  in  the  exercise  of  its  jurisdiction,  the  tri- 
bunal may  and  should  consider  the  legitimate  interests  as  well  of 
the  carrying  companies  as  of  the  traders  and  shippers,  and,  in  con- 
sidering whether  any  particular  locality  is  subjected  to  an  undue 
preference  or  disadvantage,  the  welfare  of  the  communities  occupy- 
ing the  localities  where  the  goods  are  delivered  is  to  be  considered  as 
well  as  that  of  the  communities  which  are  in  the  locality  of  the  place 
of  shipment;  that  among  the  circumstances  and  conditions  to  be 
considered,  as  well  in  the  case  of  traffic  originating  in  foreign  ports 
as  in  the  case  of  traffic  originating  within  the  limits  of  the  United 
States,  competition  that  affects  rates  should  be  considered,  and  in  de- 
ciding whether  rates  and  charges,  made  at  a  low  rate  to  secure  foreign 


INTERSTATE   COMMERCE    COM.    V.   ALABAMA   MID.    RAIL"\VAY.      437 

fieigbts  which  would  otherwise  go  by  other  competitive  routes,  are 
or  are  not  uudue  and  unjust,  the  fair  interests  of  the  carrier  com- 
panies and  the  welfare  of  the  community  which  is  to  receive  and 
consume  the  commodities  are  to  be  considered." 

To  prevent  misapprehension,  it  should  be  stated  that  the  conclu- 
sion to  which  we  are  led  by  these  cases,  that,  in  applying  the  pro- 
visions of  the  third  and  fourth  sections  of  the  act,  whicu  make  it 
unlawful  for  common  carriers  to  make  or  give  any  undue  or  unrea- 
sonable preference  or  advantage  to  any  particular  person  or  locality, 
or  to  charge  or  receive  any  greater  compensation  in  the  aggregate 
for  the  transportation  of  passengers  or  of  like  kind  of  property, 
under  substantially  similar  circumstances  and  conditions,  for  a 
shorter  than  for  a  longer  distance  over  the  same  line,  in  the  same 
direction,  competition  which  affects  rates  is  one  of  the  matters  to 
be  considered,  is  not  applicable  to  the  second  section  of  the 
act. 

As  we  have  shown  in  the  recent  case  of  Wight  v.  U.  S.,  167  U.  S. 
512,  the  purpose  of  the  second  section  is  to  enforce  equality  between 
shippers  over  the  same  line,  and  to  prohibit  any  rebate  or  other  de- 
vice by  which  two  shippers,  shipping  over  the  same  line,  the  same 
distance,  under  the  same  circumstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor;  and  we  there  held  that  the  phrase, 
"  under  substantially  similar  circumstances  and  conditions,"  as  used 
in  the  second  section,  refers  to  the  matter  of  carriage,  and  does  not 
include  competition  between  rival  routes. 

This  view  is  not  open  to  the  criticism  that  different  meanings  are 
attributed  to  the  same  words  when  found  in  different  sections  of  the 
act;  for  what  we  hold  is  that,  as  the  purposes  of  the  several  sections 
are  different,  the  phrase  under  consideration  must  be  read,  in  the 
second  section,  as  restricted  to  the  case  of  shippers  over  the  same 
road,  thus  leaving  no  room  for  the  operation  of  competition,  but  that 
in  the  other  sections,  which  cover  the  entire  tract  of  interstate  and 
foreign  commerce,  a  meaning  must  be  given  to  the  phrase  wide 
enough  to  include  all  the  facts  that  have  a  legitimate  bearing  on  the 
situation,  among  which  we  find  the  fact  of  competition  when  it 
affects  rates. 

In  order  further  to  guard  against  any  misapprehension  of  the  scope 
of  our  decision,  it  may  be  well  to  observe  that  we  do  not  hold  that 
the  mere  fact  of  competition,  no  matter  what  its  character  or  extent, 
necessarily  relieves  the  carrier  from  the  restraints  of  the  third  and 
fourth  sections,  but  only  that  these  sections  are  not  so  stringent  and 
imperative  as  to  exclude  in  all  cases  the  matter  of  competition  from 
consideration,  in  determining  the  questions  of  "  undue  or  unreason- 
able preference  or  advantage,"  or  what  are  "  substantially  similar 
circumstances  and  conditions."  The  competition  may  in  some  cases 
be  such  as,  having  due  regard  to  the  interests  of  the  public  and  of 
the  carrier,  ought  justly  to  have  effect  upon  the  rates,  and  in  such 


438       INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY. 

cases  there  is  no  absolute  rule  which  prevents  the  commission  or  the 
courts  from  taking  that  matter  into  consideration. 

It  is  further  contended,  on  behalf  of  the  appellant,  that  the  courts 
below  erred  in  holding,  in  effect,  that  competition  of  carrier  with 
carrier,  both  subject  to  the  act  to  regulate  commerce,  will  justify  a 
departure  from  the  rule  of  the  fourth  section  of  the  act  without 
authority  from  the  Interstate  Commerce  Commission,  under  the  pro- 
viso to  that  section. 

In  view  of  the  conclusion  hereinbefore  reached,  the  proposition 
comes  to  this :  that  when  circumstances  and  conditions  are  substan- 
tially dissimilar  the  railway  companies  can  only  avail  themselves  of 
such  a  situation  by  an  application  to  the  commission. 

The  language  of  the  proviso  is  as  follows:  — 

"That  upon  application  to  the  Commission  appointed  under  the 
provisions  of  this  act,  such  common  carrier  may,  in  special  cases, 
after  investigation  by  the  Commission,  be  authorized  to  charge  less 
for  longer  than  shorter  distances  for  the  transportation  of  persons  or 
property,  and  the  Commission  may  from  time  to  time  prescribe  the 
extent  to  which  such  designated  common  carrier  may  be  relieved  from 
the  operation  of  this  section  of  this  act." 

The  claim  now  made  for  the  Commission  is  that  the  only  body 
which  has  the  power  to  relieve  railroad  companies  from  the  operation 
of  the  long  and  short  haul  clause  on  account  of  the  existence  of  com- 
petition, or  any  other  similar  element  which  would  make  its  applica- 
tion unfair,  is  the  Commission  itself,  which  is  bound  to  consider  the 
question,  upon  application  by  the  railroad  company,  but  whose  de- 
cision is  discretionary  and  unreviewable. 

The  first  observation  that  occurs  on  this  proposition  is  that  there 
appears  to  be  no  allegation  in  the  bill  or  petition  raising  such  an 
issue.  The  gravamen  of  the  complaint  is  that  the  defendant  com- 
panies have  continued  to  charge  and  collect  a  greater  compensation 
for  services  rendered  in  transportation  of  property  than  is  prescribed 
in  the  order  of  the  Commission.  It  was  not  claimed  that  the  defend- 
ants were  precluded  from  showing  in  the  courts  that  the  difference  of 
rates  complained  of  was  justified  by  dissimilarity  of  circumstances 
and  conditions,  by  reason  of  not  having  applied  to  the  Commission 
to  be  relieved  from  the  operation  of  the  fourth  section. 

Moreover,  this  view  of  the  scope  of  the  proviso  to  the  fourth  sec- 
tion does  not  appear  to  have  ever  been  acted  upon  or  enforced  by  the 
Commission.  On  the  contrary,  in  the  case  of  In  re  Louisville  &  Nash- 
ville Railroad  v.  Interstate  Commerce  Commission,  1  Interst.  Com- 
merce Com.  R.  31,  57,  the  Commission,  through  Judge  Cooley,  said, 
in  speaking  of  the  effect  of  the  introduction  into  the  fourth  section 
of  the  words,  "  under  substantially  similar  circumstances  and  condi- 
tions," and  of  the  meaning  of  the  proviso:  "  That  which  the  act  does 
not  declare  unlawful  must  remain  lawful,  if  it  was  so  before;  and 
that  which  it  fails  to  forbid  the  carrier  is  left  at  liberty  to  do,  with- 


INTERSTATE    COMMEECE   COM.   V.    ALABAMA   MID.    RAILWAY.      439 

out  permissiou  of  any  one.  .  .  .  The  charging  or  receiving  the 
greater  compensation  for  the  shorter  than  for  the  longer  haul  is  seen 
to  be  forbidden  only  when  both  are  under  substantially  similar  cir- 
cumstances and  conditions;  and  therefore,  if  in  an}'  case  the  carrier, 
without  first  obtaining  an  order  of  relief,  shall  depart  from  the  gen- 
eral rule,  its  doing  so  will  not  alone  convict  it  of  illegalitj',  since, 
if  the  circumstances  and  conditions  of  the  two  hauls  are  dissimilar, 
the  statute  is  not  violated.  .  .  .  Beyond  question,  the  carrier  must 
judge  for  itself  what  are  the  '  substantially  similar  circumstances  and 
conditions '  which  preclude  the  special  rate,  rebate,  or  drawback 
which  is  made  unlawful  by  the  second  section,  since  no  tribunal  is 
empowered  to  judge  for  it  until  after  the  carrier  has  acted,  and  then 
only  for  the  purpose  of  determining  whether  its  action  constitutes  a 
violation  of  law.  The  carrier  judges  on  peril  of  the  consequences, 
but  tlie  special  rate,  rebate,  or  drawback  which  it  grants  is  not  ille- 
gal when  it  turns  out  that  the  circumstances  and  conditions  were  not 
such  as  to  forbid  it;  and,  as  Congress  clearly  intended  this,  it  must 
also,  when  using  the  same  words  in  the  fourth  section,  have  intended 
that  the  carrier  whose  privilege  was  in  the  same  way  limited  by  them 
should  in  the  same  way  act  upon  its  judgment  of  the  limiting  cir- 
cumstances and  conditions." 

The  view  thus  expressed  has  been  adopted  in  several. of  the  Circuit 
Courts.  Interstate  Commerce  Commission  v.  Atchison,  Topeka,  &c. 
Railroad,  50  Fed.  295,  300;  Interstate  Commerce  Commission  v.  Cin- 
cinnati, N.  O.  &  Tex.  Pac.  Ry.,  56  Fed.  925,942;  Behlmer  v.  Louisville 
&,  Nashville  Railroad,  71  Fed.  835,  839.  And  we  do  not  think  the 
courts  below  erred  in  following  it  in  the  present  case.  We  are  unable 
to  suppose  that  Congress  intended,  by  the  fourth  section  and  the  pro- 
viso thereto,  to  forbid  common  carriers,  in  cases  where  the  circum- 
stances and  conditions  are  substantially  dissimilar,  from  making 
different  rates  until  and  unless  the  Commission  shall  authorize  them 
so  to  do.  Much  less  do  we  think  that  it  was  the  intention  of  Con- 
gress that  the  decision  of  the  Commission,  if  applied  to,  could  not 
be  reviewed  by  the  courts.  The  provisions  of  section  16  of  the  act, 
which  authorize  the  court  to  "  proceed  to  hear  and  determine  the 
matter  speedily  as  a  court  of  equity,  and  without  the  formal  plead- 
ings and  proceedings  applicable  to  ordinary  suits  in  equity,  but  in 
such  manner  as  to  do  justice  in  the  premises,  and  to  this  end  such 
court  shall  have  power,  if  it  think  fit,  to  direct  and  prosecute  in  such 
mode  and  by  such  persons  as  it  may  appoint,  all  such  inquiries  as 
the  court  may  think  needful  to  enable  it  to  form  a  just  judgment  in 
the  matter  of  such  petition,"  extend  as  well  to  an  inquiry  or  proceed- 
ing under  the  fourth  section  as  to  those  arising  under  the  other  sec- 
tions of  the  act. 

Upon  these  conclusions,  that  competition  between  rival  routes  is 
one  of  the  matters  which  may  lawfully  be  considered  in  making  rates, 
and  that  substantial  dissimilarity  of  circumstances  and  conditions 


440      INTERSTATE    COMMERCE    COM.    V.   ALABAMA   MID.    RAILWAY. 

may  justify  common  carriers  in  charging  greater  compensation 
for  the  transportation  of  like  kinds  of  property  for  a  shorter  than 
for  a  longer  distance  over  the  same  line,  we  are  brought  to  con- 
sider whether,  upon  the  evidence  in  the  present  case,  the  courts 
below  erred  in  dismissing  the  Interstate  Commerce  Commission's 
complaint. 

As  the  third  section  of  the  act,  which  forbids  the  making  or  giv- 
ing any  undue  or  unreasonable  preference  or  advantage  to  any  par- 
ticular person  or  locality,  does  not  define  what,  under  that  section, 
shall  constitute  a  preference  or  advantage  to  be  undue  or  unreason- 
able, and  as  the  fourth  section,  wiiich  forbids  the  charging  or  re,- 
ceiving  greater  compensation  in  the  aggregate  for  the  transportation 
of  like  kinds  of  property  for  a  shorter  than  for  a  longer  distance 
over  the  same  line,  under  substantially  similar  circumstances  and 
conditions,  does  not  define  or  describe  in  what  the  similarity  or  dis- 
similarity of  circumstances  and  conditions  shall  consist,  it  cannot  be 
doubted  that  whether,  in  particular  instances,  there  has  been  an 
undue  or  unreasonable  prejudice  or  preference,  or  whether  the  cir- 
cumstances and  conditions  of  the  carriage  have  been  substantially 
similar  or  otherwise,  are  questions  of  fact,  depending  on  the  matters 
proved  in  each  case.  Deuaby  Main  Colliery  Co.  v.  Manchester,  &c. 
Ry.  Co.,  3  Railway  &  Can.  Cas.  426;  Phipps  t'.  London  &  North- 
western Railway,  [1892]  2  Q.  B.  229;  Cinciunati,  N.  O.  &  Tex. 
Pac.  Ry.  V.  Interstate  Commerce  Commission,  162  U.  S.  184,  194; 
Texas  &  Pacific  Railway  v.  Interstate  Commerce  Commission,  162 
U.   S.   197,   235. 

The  Circuit  Court,  after  a  consideration  of  the  evidence,  expressed 
its  conclusion  thus:  — 

"  In  any  aspect  of  the  case,  it  seems  impossible  to  consider  this 
complaint  of  the  board  of  trade  of  Troy  against  the  defendant  rail- 
road companies,  particularly  the  Midland  and  Georgia  Central  Rail- 
roads, in  the  matter  of  the  charges  upon  property  transported  on  their 
roads  to  or  from  points  east  or  west  of  Troy,  as  specified  and  com- 
plained of,  obnoxious  to  the  fourth  or  any  other  section  of  the  Inter- 
state Commerce  Act.  The  conditions  are  not  substantially  the  same, 
and  the  circumstances  are  dissimilar,  so  that  the  case  is  not  within 
the  statute.  The  case  made  here  is  not  the  case  as  it  was  made  be- 
fore the  Commission.  New  testimony  has  been  taken,  and  the  con- 
clusion reached  is  that  the  bill  is  not  sustained;  that  it  should  be 
dismissed;  and  it  is  so  ordered."     69  Fed.  227. 

The  Circuit  Court  of  Appeals,  in  affirming  the  decree  of  the  Cir- 
cuit Court,  used  the  following  language:  — 

"  Only  two  railroads,  the  Alabama  Midland  and  the  Georgia  Cen- 
tral, reach  Troy.  Each  of  these  roads  has  connection  with  other 
Hues,  parties  hereto,  reaching  all  the  long-distance  markets  men- 
tioned in  these  proceedings.  The  commission  finds  that  no  depart- 
ure from  the  long  and  short  haul  rule  of  the  fourth  section  of  the 


INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY.      441 

statute,  as  against  Troy,  as  the  shorter  distance  point,  and  in  favor 
of  Montgomery,  as  the  longer  distance  point,  appears  to  be  charge- 
able to  the  Georgia  Central.  The  rates  in  question,  when  separately 
considered,  are  not  unreasonable  or  unjust.  As  a  matter  of  business 
necessity,  they  are  the  same  by  each  of  the  railroads  that  reach  Troy. 
The  Commission  concludes  that  as  related  to  the  rates  to  Mont- 
gomery, Columbus,  and  Eufaula  the  rates  to  and  from  Troy  unjustly 
discriminate  against  Troy,  and,  in  the  case  of  the  Alabama  Midland, 
violate  the  long  and  short  haul  rule. 

"  The  population  and  volume  of  business  at  Montgomery  are 
many  times  larger  than  at  Troy.  There  are  many  more  railway 
lines  running  to  and  through  Montgomery,  connecting  with  all  the 
distant  markets.  The  Alabama  River,  open  all  the  year,  is  capable, 
if  need  be,  of  bearing  to  Mobile,  on  the  sea,  the  burden  of  all  the 
goods  of  every  class  that  pass  to  or  from  Montgomery.  The  compe- 
tition of  the  railway  lines  is  not  stifled,  but  is  fully  recognized, 
intelligently  and  honestly  controlled  and  regulated,  by  the  traffic 
association,  in  its  schedule  of  rates.  There  is  no  suggestion  in  the 
evidence  that  the  traffic  managers  who  represent  the  carriers  that  are 
members  of  that  association  are  incompetent,  or  under  the  bias  of 
any  personal  preference  for  Montgomery  or  prejudice  against  Troy, 
that  has  led  them,  or  is  likely  to  lead  them,  to  unjustly  discriminate 
against  Troy.  When  the  rates  to  Montgomery  were  higher  a  few 
years  ago  than  now,  actual  active  water  line  competition  by  the  river 
came  in,  and  the  rates  were  reduced  to  the  level  of  the  lowest  prac- 
tical paying  water  rates;  and  the  volume  of  carriage  by  the  river  ia 
now  comparatively  small,  but  the  controlling  power  of  that  water  line 
remains  in  full  force,  and  must  ever  remain  in  force  as  long  as  the 
river  remains  navigable  to  its  present  capacity.  And  this  water  line 
affects,  to  a  degree  less  or  more,  all  the  shipments  to  or  from  Mont- 
gomery from  or  to  all  the  long-distance  markets.  It  would  not  take 
cotton  from  Montgomery  to  the  South  Atlantic  ports  for  export,  but 
it  would  take  the  cotton  to  the  points  of  its  ultimate  destination,  if 
the  railroad  rates  to  foreign  marts  through  the  Atlantic  ports  were 
not  kept  down  to  or  below  the  level  of  profitable  carriage  by  water 
from  Montgomery  through  the  port  of  Mobile.  The  volume  of  trade 
to  be  competed  for,  the  number  of  carriers  actually  competing  for  it, 
a  constantly  open  river  present  to  take  a  large  part  of  it  whenever 
the  railroad  rates  rise  up  to  the  mark  of  profitable  water  carriage, 
seem  to  us,  as  they  did  to  the  Circuit  Court,  to  constitute  circum- 
stances and  conditions  at  Montgomery  substantially  dissimilar  from 
those  existing  at  Troy,  and  to  relieve  the  carriers  from  the  charges 
preferred  against  them  by  the  Board  of  Trade.  We  do  not  discuss 
the  third  and  fourth  contention  of  the  counsel  for  the  appellant, 
further  than  to  say  that  within  the  limits  of  the  exercise  of  intelli- 
gent good  faith  in  the  conduct  of  their  business,  and  subject  to  the 
two  leading  prohibitions  that  their  charges  shall  not  be  unjust  or 


442       IjSTTEESTATE    commerce    com.    v.    ALABAMA    MID.    KAILWAY. 

unreasonable,  and  that  they  shall  not  unjustly  discriminate  so  as  to 
give  undue  preference  or  disadvantage  to  persons  or  traffic  similarly 
circumstanced,  the  act  to  regulate  commerce  leaves  common  carriers, 
as  they  were  at  the  common  law,  free  to  make  special  rates  looking 
to  the  increase  of  their  business,  to  classify  their  traffic,  to  adjust 
and  apportion  their  rates  so  as  to  meet  the  necessities  of  commerce 
and  of  their  own  situation  and  relation  to  it,  and  generally  to  man- 
age their  important  interests  upon  the  same  principles  which  are 
regarded  as  sound,  and  adopted,  in  other  trades  and  pursuits.  The 
carriers  are  better  qualified  to  adjust  such  matters  than  any  court  or 
board  of  public  administration,  and,  within  the  limitations  sug- 
gested, it  is  safe  and  wise  to  leave  to  their  traffic  managers  the  ad- 
justing of  dissimilar  circumstances  and  conditions  to  their  business." 
41  U.^S.  App.  453. 

The  last  sentence  in  this  extract  is  objected  to  by  the  commission's 
counsel,  as  declaring  that  the  determination  of  the  extent  to  which 
discrimination  is  justified  by  circumstances  and  conditions  should  be 
left  to  the  carriers.  If  so  read,  we  should  not  be  ready  to  adopt  or 
approve  such  a  position.  But  we  understand  the  statement,  read  in 
the  connection  in  which  it  occurs,  to  mean  only  that,  when  once  a 
substantial  dissimilarity  of  circumstances  and  conditions  has  been 
made  to  appear,  the  carriers  are,  from  the  nature  of  the  question, 
better  fitted  to  adjust  their  rates  to  suit  such  dissimilarity  of  circum- 
stances and  conditions  than  courts  or  commissions;  and  when  we 
consider  the  difficulty,  the  practical  impossibility,  of  a  court  or  a 
commission  taking  into  view  the  various  and  continually  changing 
facts  that  bear  upon  the  question,  and  intelligently  regulating  rates 
and  charges  accordingly,  the  observation  objected  to  is  manifestly 
just.  But  it  does  not  mean  that  the  action  of  the  carriers,  in  fixing 
and  adjusting  the  rates,  in  such  instances,  is  not  subject  to  revision 
by  the  Commission  and  the  courts,  when  it  is  charged  that  such  action 
has  resulted  in  rates  unjust  or  unreasonable,  or  in  unjust  discrimina- 
tions and  preferences.  And  such  charges  were  made  in  the  present 
case,  and  were  considered,  in  the  fiist  place  by  the  commission, 
and  afterwards  by  the  Circuit  Court  and  by  the  Circuit  Court  of 
Appeals. 

The  first  contention  we  encounter  upon  this  branch  of  the  case  is 
that  the  Circuit  Court  had  no  jurisdiction  to  review  the  judgment 
of  the  Commission  upon  this  question  of  fact;  that  the  court  is 
only  authorized  to  inquire  whether  or  not  the  Commission  has 
misconstrued  the  statute,  and  thereby  exceeded  its  power;  that 
there  is  no  general  jurisdiction  to  take  evidence  upon  the  merits 
of  the  original  controversy;  and,  especially,  that  questions  under 
the  third  section  are  questions  of  fact,  and  not  of  power,  and  hence 
unreviewable. 

We  think  this  contention  is  sufficiently  answered  by  simply  refer- 
ring to  those  portions  of  the  act  which  provide  that,  when  the  court 


INTERSTATE    COMMERCE   COM.    V.    ALABAMA   MID.    RAILAVAY.      443 

is  invoked  by  the  Commission  to  enforce  its  lawful  orders  or  require- 
ments, the  court  shall  proceed,  as  a  court  of  equity,  to  hear  and 
determine  the  matter,  and  in  such  manner  as  to  do  justice  in  the 
premises. 

In  the  case  of  Cincinnati,  N.  O.  &  Texas  Pac.  Railway  v.  Inter- 
state Commerce  Commission,  162  U.  S.  184,  the  fiiidings  of  the 
commission  were  overruled  by  the  Circuit  Court,  after  additional  evi- 
dence taken  in  the  court,  and  the  decision  of  the  Circuit  Court  was 
reviewed  in  the  light  of  the  evidence,  and  reversed,  by  the  Circuit 
Court  of  Appeals;  and  this  court,  in  reference  to  the  argument  that 
the  commission  had  not  given  due  weight  to  the  facts  that  tended  to 
show  that  the  circumstances  and  conditions  were  so  dissimilar  as  to 
justify  the  rates  charged,  held  that,  as  the  question  was  one  of  fact, 
peculiarly  within  the  province  of  the  commission,  and  as  its  con- 
clusions had  been  accepted  and  approved  by  the  Circuit  Court  of 
Appeals,  and  as  this  court  found  nothing  in  the  record  that  made  it 
our  duty  to  draw  a  different  conclusion,  the  decree  of  the  Circuit 
Court  of  Appeals  should  be  affirmed.  Such  a  holding  clearly  implies 
that  there  was  power  in  the  courts  below  to  consider  and  apply  the 
evidence,  and  in  this  court  to  review  their  decisions. 

So  in  the  case  of  Texas  &  Pacific  Railway  v.  Interstate  Commerce 
Commission,  162  U.  S.  197,  the  decision  of  the  Circuit  Court  of 
Appeals,  which  affirmed  the  validity  of  the  order  of  the  commission, 
upon  the  ground  that,  even  if  ocean  competition  should  be  regarded 
as  creating  a  dissimilar  condition,  yet  that  in  the  case  under  consid- 
eration the  disparity  in  rates  was  too  great  to  be  justified  by  that 
condition,  was  reversed  by  this  court,  not  because  the  Circuit  Court 
had  no  jurisdiction  to  consider  the  evidence,  and  thereupon  to  affirm 
the  validity  of  the  order  of  the  commission,  but  because  that  issue 
was  not  a(!tually  before  the  court,  and  that  no  testimony  had  been 
adduced  by  either  party  on  such  an  issue;  and  it  was  said  that  the 
language  of  the  act,  authorizing  the  court  to  hear  and  determine  the 
matter  as  a  case  of  equity,  "  necessarily  implies  that  the  court  is  not 
concluded  by  the  findings  or  conclusions  of  the  Commission." 

Accordingly  our  conclusion  is  that  it  was  competent,  in  the  pres- 
ent case,  for  the  Circuit  Court,  in  dealing  with  the  issues  raised  by 
the  petition  of  the  Commission  and  the  answers  thereto,  and  for  the 
Circuit  Court  of  Appeals  on  the  appeal,  to  determine  the  case  upon 
a  consideration  of  the  allegations  of  the  parties,  and  of  the  evidence 
adduced  in  their  support;  giving  effect,  however,  to  the  findings  of 
fact  in  the  report  of  the  Commission,  as  prima  facie  evidence  of  the 
matters  therein  stated. 

It  has  been  uniformly  held  by  the  several  Circuit  Courts  and  the 
Circuit  Courts  of  Appeal,  in  such  cases,  that  they  are  not  restricted 
to  the  evidence  adduced  before  the  commission,  nor  to  a  considera- 
tion merely  of  the  power  of  the  commission  to  make  the  particular 
order  under  question,  but  that  additional  evidence  may  be  put  in  by 


444      INTERSTATE    COMMERCE    COM.    V.    ALABAMA   MID.    RAILWAY. 

either  party,  and  that  the  duty  of  the  court  is  to  decide,  as  a  court 
of  equity,  upon  the  entire  body  of  evidence. 

Coming  at  last  to  the  questions  of  fact  in  this  case,  we  encounter 
a  large  amount  of  conflicting  evidence.  It  seems  undeniable,  as  the 
effect  of  the  evidence  on  both  sides,  that  an  actual  dissimilarity  of 
circumstances  and  conditions  exists  between  the  cities  concerned, 
both  as  respects  the  volume  of  their  respective  trade  and  the  compe- 
tition, affecting  rates,  occasioned  by  rival  routes  by  land  and  water. 
Indeed,  the  Commission  itself  recognized  such  a  state  of  facts,  by 
making  an  allowance  in  the  rates  prescribed  for  dissimilarity  re- 
sulting from  competition;  and  it  was  contended  on  behalf  of  the 
Commission,  both  in  the  courts  below  and  in  this  court,  that  the 
competition  did  not  justify  the  discriminations  against  Troy  to 
the  extent  shown,  and  that  the  allowance  made  therefor  by  the  Com- 
mission was  a  due  allowance. 

The  issue  is  thus  restricted  to  the  question  of  the  preponderance 
of  the  evidence  on  the  respective  sides  of  the  controversy.  We  have 
read  the  evidence  disclosed  by  the  record,  and  have  endeavored  to 
weigh  it  with  the  aid  of  able  and  elaborate  discussions  by  the  re- 
spective counsel. 

No  useful  purpose  would  be  served  by  an  attempt  to  formally  state 
and  analyze  the  evidence,  but  the  result  is  that  we  are  not  convinced 
that  the  courts  below  erred  in  their  estimate  of  the  evidence,  and 
that  we  perceive  no  error  in  the  principles  of  law  on  which  they  pro- 
ceeded in  the  application  of  the  evidence. 

The  decree  of  the  Circuit  Court  of  Appeals  is  accordingly 

Affirmed. 

Mr.  Justice  Harlan,  dissenting.  —  I  dissent  from  the  opinion  and 
judgment  in  this  case.  Taken  in  connection  with  other  decisions 
defining  the  powers  of  the  Interstate  Commerce  Commission,  the 
present  decision,  it  seems  to  me,  goes  far  to  make  that  Commission 
a  useless  body,  for  all  practical  purposes,  and  to  defeat  many  of  the 
important  objects  designed  to  be  accomplished  by  the  various  enact- 
ments of  Congress  relating  to  interstate  commerce.  The  Commission 
was  established  to  protect  the  public  against  the  improper  practices 
of  transportation  companies  engaged  in  commerce  among  the  several 
States.  It  has  been  left,  it  is  true,  with  power  to  make  reports  and 
to  issue  protests.  But  it  has  been  shorn,  by  judicial  interpretation, 
of  authority  to  do  anything  of  an  effective  character.  It  is  denied 
many  of  the  powers  which,  in  my  judgment,  were  intended  to  be  con- 
ferred upon  it.  Besides,  the  acts  of  Congress  are  now  so  construed 
as  to  place  communities  on  the  lines  of  interstate  commerce  at  the 
mercy  of  competing  railroad  companies  engaged  in  such  commerce. 
The  judgment  in  this  case,  if  I  do  not  misapprehend  its  scope  and 
effect,  proceeds  upon  the  ground  that  railroad  companies,  when  com- 
petitors for  interstate  business  at  certain  points,  may,   in  order  to 


INTERSTATE   COMMERCE   COM.   V.   ALABAMA   MID.   RAILWAY.      445 

secure  traffic  for  and  at  those  points,  establish  rates  that  will  enable 
them  to  accomplish  that  result,  although  such  rates  may  discriminate 
against  intermediate  points.  Under  such  an  interpretation  of  the 
statutes  in  question,  they  may  well  be  regarded  as  recognizing  the 
authority  of  competing  railroad  companies  engaged  in  interstate 
commerce  —  when  their  interests  will  be  subserved  thereby  —  to  build 
up  favored  centres  of  population  at  the  expense  of  the  business  of 
the  country  at  large.  I  cannot  believe  that  Congress  intended  anj' 
such  result,  nor  do  I  think  that  its  enactments,  properly  interpreted, 
would  lead  to  such  a  result. 


446      PENNSYLVANIA   COAL   CO.    V.   DELAWARE,    ETC.   CANAL   CO. 


CHAPTER  III. 

RIGHTS    OF    PUBLIC    CALLING. 


Section  I.     To  make  Regulations. 

PENNSYLVANIA  COAL  CO.  v.   DELAWARE  AND  HUDSON 

CANAL  CO. 

Court  of  Appeals,   New  York,  1865. 

[31  N.  y.  91.] 

Davies,  J.  The  defendant  is  the  owner  of  a  canal  extending  from 
tide  water  on  the  Hudson  River,  to  the  interior  of  the  State  of  Pennsyl- 
vania. The  plaintiff  is  the  owner  of  extensive  coal  mines,  bordering 
on  the  defendant's  canal,  which  it  mines  for  transportation  to  market. 
For  such  purpose,  it  is  tlie  owner  of  a  large  number  of  canal  boats 
navigating  the  defendant's  canal.  By  an  agreement  or  deed,  made 
and  entered  into  between  the  parties  to  this  action,  dated  29th  July, 
1851,  the  defendant  covenanted  and  agreed  with  tlie  plaintiff,  to  furnish 
to  any  and  all  boats  owned  or  used  by  the  plaintiff  for  the  purpose  of 
transporting  coal  entering  the  said  canal,  b}'  railroad  connecting  with 
the  said  canal,  at  or  near  the  mouth  of  the  Wallenpanpack  River,  or 
containing  coal,  entering  as  aforesaid,  belonging  to  or  transported  by 
or  on  account  of  tlie  plaintiff,  in  w^iich  coal,  or  the  transportation 
thereof,  the  plaintiff  miglit  be  in  any  manner  interested,  all  the  facili- 
ties of  navigation  and  transportation  which  the  said  canal  should  fur- 
nish, when  in  good,  navigable  condition  and  repair,  to  boats  used  by 
an}'  other  company  or  person,  or  belonging  to  or  used  b}-  or  containing 
coal  transported  by  or  for  or  on  account  of  the  defendant.  The  plaintiff 
alleged  a  breach  of  said  contract  or  agreement  in  this,  that  the  number 
of  boats  employed  by  the  plaintiff  in  the  transportation  of  coal  upon 
said  canal,  was  greater  than  the  number  employed  by  tiie  defendant 
tlierein,  and  tliat  the  boats  of  the  plaintiff,  and  tliose  employed  by  it, 
made  their  trips  in  much  sliorter  time  than  the  boats  of  the  defendant, 
and  therefore  the  act  of  the  defendant  in  neglecting  and  refusing  to 
pass  the  boats  of  the  plaintiff  throiigli  the  locks  on  said  canal  in  the 
order  in  which  they  arrived  at  the  locks  respectively,  but  delaj'ing  them 


PENNSYLVANIA  COAL  CO.  V.    DELAWARE,  ETC.  CANAL  CO.   447 

until  one  of  the  boats  of  the  defendant,  or  of  some  individual,  arriving 
after  the  plaintiff's  boat  at  such  lock,  had  been  passed,  was  highly  in- 
jurious and  of  great  detriment  to  the  plaintiff.  The  plaintiff  prays 
judgment,  that  the  defendant  may  be  decreed  and  adjudged  to  use  and 
manage  said  canal  and  the  locks  thereon,  in  such  manner  as  not  to  im- 
pede, liinder,  or  delay  the  boats  of  the  plaintiff  navigating  the  said 
canal,  and  used  for  the  purpose  of  transporting  coal  entering  said  canal 
at  or  near  the  mouth  of  the  Wallenpaupack  River,  or  containing  coal, 
and  entering  as  aforesaid,  belonging  to  or  transported  by  or  on  account 
of  the  plaintiff,  and  may  be  restrained  from  giving  the  preference  of 
passage  tlirough  any  lock  tliereon  to  some  other  boat  than  tlie  plaintiff'sj 
altliough  the  latter  arrived  first  at  such  lock,  and  that  the  defendant 
might  be  decreed  specifically  to  perform  its  said  agreement  with  the 
plaintiff. 

The  case  was  tried  by  the  court  without  a  jury,  and  the  court  found 
as  matter  of  fact,  tliat  the  plaintiff  had  not  proven  a  breach  of  the  con- 
tract, and  the  court  tliereupon  gave  judgment  for  the  defendant,  de- 
nying the  relief  asked  for,  and  denying  the  injunction  prayed  for  and 
dismissing  the  complaint  with  costs.  The  General  Term,  on  appeal, 
affirmed  this  judgment,  and  the  plaintiff  now  appeals  to  this  court. 

The  only  ground  upon  which  the  plaintiff  could  invoke  the  aid  of  a 
court  of  equity  to  decree  a  specific  performance  of  the  contract,  and  to 
restrain  the  defendant  from  its  violation,  was  that  there  had  been  a 
breach  of  the  contract  and  a  violation,  or  a  threatened  violation  of  it. 
Tliis  was  the  foundation  of  the  plaintiff's  edifice,  the  corner  stone  upon 
which  it  rested.  The  finding  by  the  court,  that  no  breach  or  violation 
of  the  contract  had  been  proven,  entirely  demolishes  all  claim  of  the 
plaintiff  to  any  equitable  relief.  No  threatened  violation  of  the  con- 
tract is  alleged  or  pretended,  and  it  follows  that  the  judgment  of  the 
Supreme  Court  on  this  state  of  facts  was  correct,  and  the  same  should 
be  aflfirmed. 

MuLLix,  J.  Two  questions  only  are  presented  for  consideration  on 
this  appeal.  These  are  :  1st.  Whether  the  contract  between  the  parties 
had  been  violated.  And  if  it  has,  then,  2d.  Are  the  plaintiffs  entitled 
to  a  specific  performance  of  the  contract. 

1.    Have  the  defendants  broken  the  contract? 

The  defendants  obligated  themselves  by  the  agreement  to  furnish  to 
the  plaintiffs'  boats  all  the  facilities  of  navigation  and  transportation 
which  their  canal  should  afford,  when  in  good  and  navigable  condition 
and  repair,  to  boats  owned  or  used  by  any  other  company  or  person,  or 
owned  or  used  by  the  defendants  for  tlie  transportation  of  coal. 

Tlie  contract,  it  will  be  perceived,  is  not,  as  the  plaintitTs'  counsel 
seems  to  construe  it,  that  the  defendants  will  afford  to  the  plaintiffs' 
boats  all  the  facilities  of  navigation  that  the  canal,  when  in  good  order, 
shall  afford,  but  it  is  to  furnish  all  tlie  facilities  to  tlie  plaintiffs  that  the 
canal,  when  in  good  order,  shall  afford  to  any  other  person's  or  com- 
pany's boats,  including  defendants'  own  boats. 


443   PENNSYLVANIA  COAL  CO.  V.    DELAWARE,  ETC.  CANAL  CO. 

Before  the  plaintiffs  can  insist  tliat  the  contract  has  been  violated  as 
to  its  boats,  they  were  bound  to  show  what  facilities  were  afforded  by 
the  canal,  when  in  good  order,  to  other  boats.  No  difference  is  shown 
to  have  been  made  between  the  plaintiffs'  boats  and  those  of  other 
owners,  in  the  facilities  extended  in  the  business  of  navigating  the 
canal. 

The  defendants,  as  owners,  had  the  right  to  prescribe  such  reason- 
able rules  and  regulations  for  the  government  of  vessels  passing  along 
their  canal,  as  their  directors  deemed  best  calculated  to  promote  their 
own  interests  and  the  interests  of  those  engaged  in  navigating  the 
canal.  Such  regulations  must  embrace  the  order  in  which  boats  should 
pass  through  the  locks.  Such  regulations,  while  resting  largely  in  the 
discretion  of  the  officers  of  the  compan}',  must,  nevertheless,  be  rea- 
sonable. Now,  it  appears  that  all  boats  passing  to  the  Hudson  River, 
were  locked  through  the  Eddyville  lock  in  the  order  of  their  arrival 
at  such  lock.  This  regulation  is  not  complained  of;  but  it  is  insisted 
that  the  same  rule  should  be  observed  in  locking  up  through  the  same 
lock  the  empty  boats,  and  that  the  omission  to  do  so  is  a  breach  of  the 
agreement.  It  is  claimed  that  the  detention  of  plaintiffs'  boats,  if  they 
first  arrive  at  the  lock,  until  boats  of  the  defendants,  subsequently 
arriving,  are  locked  through  alternately  with  plaintiffs',  causes  unrea- 
sonable dela\',  and  is  an  unjust  detention  of  the  plaintiffs'  boats. 

When  the  plaintiffs'  boats  arrive  at  the  lock  first,  it  does  seem  to  be 
oppressive  to  require  any  of  them  to  be  delayed  until  the  boats  of 
other  persons,  subsequently  arriving,  are  locked  through.  But  it  must 
sometimes  happen  that  the  defendants'  boats  arrive  first,  and  if  they 
are  delayed  until  the  plaintiffs'  boats,  subsequently  arriving,  have 
been  passed  through,  the  plaintiffs  have  the  benefit  of  the  same  rule 
which  operated  injuriously  when  their  boats  were  first  at  the  lock. 
While  the  rule  is  uniformly  and  impartially  applied,  it  is  difficult  lo 
see  how  it  operates  to  the  prejudice  of  the  plaintiffs  rather  than  to  that 
of  all  others  navigating  the  canal.  While  it  is  true  that  the  plaintiffs 
owned  the  largest  number  of  boats,  it  does  not  follow,  nor  is  it  proved, 
that  their  boats  are  uniformly  first  at  the  lock  on  their  way  back  to  the 
mines.  If  they  are  not,  tiien  they  must  take  the  delay  imposed  upon 
them  by  the  regulation  in  compensation  for  the  benefit  derived  from 
passing  alternately  with  boats  arriving  at  the  lock  before  those  of  the 
plaintiffs. 

It  does  not  appear  that  the  regulation  complained  of  was  a  new  one. 
It  may  have  been,  and  in  the  absence  of  both  allegation  and  proof  to 
the  contrary,  I  think  we  are  bound  to  presume  that  it  had  been  in  force 
from  the  making  of  the  contract;  and  if  so  —  if  the  plaintiffs  had  ac- 
quiesced in  it  for  so  long  a  time  —  it  is  somewhat  late  to  complain 
of  it. 

If  the  regulation  was  designed  to  embarrass  the  plaintiffs,  it  is  diffi- 
cult to  see  why  it  should  not  have  been  applied  to  the  boats  coming  to 
as  well  as  to  those  going  from  the  Hudson.     There  would  seem  to  have 


PENNSYLVANIA  COAL  CO.  V.    DELAWARE,  ETC.  CANAL  CO.   449 

been  some  reason  for  the  discrimination,  but  what  it  is  is  not  disclosed 
by  the  case. 

A  reason  is  suggested  by  the  respondents'  counsel  which  would  seem 
to  account  for  the  regulation,  and  is  probably  the  true  one,  and  that 
is,  that  as  but  a  single  boat,  or  at  most  but  a  very  limited  num- 
ber of  boats  is  being  laden  at  the  same  time,  by  either  party,  it  is  no 
cause  of  delay  that  the  empty  boats  arrive  one  after  the  otiier,  at  in- 
tervals of  twenty  minutes  ;  for  if  twenty  or  thirt}'  boats  arrive  at  one 
time,  they  must  be  detained  until  those  ahead  are  loaded,  and  the  re- 
sult would  be,  that  while  nothing  would  be  gained  by  the  plaintiffs, 
considerable  time  would  be  lost  by  the  other  boats  compelled  to  wait 
until  all  of  plaintiffs'  boats  had  passed  through.  By  the  regulation,  it 
would  seem  that  plaintiffs'  boats  are  passed  up  as  fast  as  they  are  re- 
quired to  be  loaded,  and  that  unnecessary  delay  to  the  defendants'  boats 
is  avoided. 

A  preference  seems  to  be  given  to  transient  boats  over  those  of  either 
the  plaintiffs  or  defendants.  In  what  business  these  transient  boats 
were  emploved,  or  their  number,  or  who  were  the  owners,  does  not  ap- 
pear. But  it  is  probable  that  the}'  were  boats  engaged  in  the  trans- 
portation of  property  other  than  coal,  and  that  the  number  was  small 
compared  with  the  number  owned  b}'  the  plaintiffs  or  defendants.  If 
these  conjectures  are  correct,  the}'  would  account  for  the  preference 
given  to  such  boats  in  passing  the  lock.  It  would  be  very  harsh  to  re- 
quire a  man,  owning  a  single  boat,  to  be  detained  until  thirt}'  or  forty 
boats,  arriving  ahead  of  him,  were  got  through  the  lock.  And,  when 
a  preference  was  given  to  one  such  boat,  it  became  necessary  to  ex- 
tend it  to  all,  and  it  does  not  appear  that  the  preference  delayed  the 
loading  of  an}-  of  the  plaintiffs'  boats.  This  delay,  and  not  that  at 
the  lock,  would  be  the  cause  of  damage  of  which  the  plaintiffs  could 
justly  complain.  If  the  boats,  on  arriving  at  their  place  of  destination, 
would  have  been  detained  as  long  before  being  loaded  as  they  lay  at  the 
lock,  it  is  not  perceived  how  the  plaintiffs  could  be  damnified. 

In  a  word,  the  regulation  is  one  that  the  defendants  had  the  right  to 
make  ;  it  is  not  shown  to  be  either  unreasonable  or  unjust,  nor  that  it 
has  been  the  cause  of  an}'  real  injury  to  the  plaintiffs.  It  seems  to 
have  been  acquiesced  in  for  a  long  time,  and  no  reason  is  perceived 
why  it  should  now  be  repudiated  or  annulled.^ 

Judgment  affirmed.^ 

1  The  learned  judge  also  held  that  no  case  had  been  shown  for  equitable  jurisdic- 
tion.—  Ed. 

2  Compare :  Macon  R.  R.  v.  Johnson,  38  Ga.  409 ;  Lake  Shore  R.  R.  v.  Brown,  123 
111.  162;  Decuis  i'.  Benson,  27  La.  Ann.  1  ;  Day  v.  Owen,  5  Mich.  .520;  Johnson  v. 
Concord  Corp.,  46  N.  H.  213 ;  Whitesell  v.  Crane,  8  Watts  &  S.  369.— Ed. 


29 


450  POPE   V.    HALL. 


POPE  V.  HALL. 
Supreme  Court  of  Louisiana,  1859. 

[14  La.   Ann.  324] 

Merrick,  C.  J.  This  suit  has  been  brought  against  Messrs. 
Hall  &  Hildreth,  the  proprietors  of  the  well-known  St.  Charles  Hotel, 
of  this  city,  to  recover  of  them  three  hundred  and  forty-five  dollars, 
for  a  watch  and  chain  and  gold  coin,  alleged  to  have  been  stolen  from 
the  trunk  of  the  plaintiff  whilst  lodging  with  the  defendants  as  a 
traveller. 

The  case  was  tried  without  the  intervention  of  a  jur3',  and  an  elabo- 
rate examination  of  the  law  and  facts  by  the  learned  judge  of  the 
District  Court  resulted  in  a  judgment  in  favor  of  the  plaintiff  for  $300  ; 
defendants  have  appealed. 

At  the  head  of  each  stairwa}-  a  large  card  was  posted,  cautioning 
the  boarders  to  beware  of  hotel  thieves,  and  requesting  them  to  deposit 
all  mone}-,  jewelr}-,  watches,  plate,  or  other  valuables,  in  the  safe  at  the 
office,  and  notifying  the  guests  that  the  proprietors  would  not  be 
responsible  for  any  such  articles  stolen  from  the  rooms. 

The  regulations  of  the  hotel  were  posted  in  print  in  each  of  the 
rooms.  Among  other  regulations,  is  stated  that  "  money  and  articles 
of  value  may  be  deposited  and  a  receipt  taken,  and  no  remuneration 
may  be  expected  if  lost  when  otherwise  disposed  of." 

The  defendants  contend  that  the  innkeeper  has  the  right  to  sa}- 
where  the  property  shall  be  kept  as  a  sequence  of  his  responsibility  ; 
that  if  he  is  to  be  held  responsible  as  a  custodian,  he  must  be  permitted 
to  guard  the  property  in  his  own  way,  and  they  derive  this  right  to 
limit  the  responsibility  from  the  Roman  law,  and  cite  the  concluding 
jjaragraph  to  law  7.  Dig.,  lib.  4,  tit.  9,  De  ijrotestatione  exercitoris. 
It  is  as  follows  :  — 

Item  si  jjrcedixerit,  et  imusquisque  rectorum  res  suas  servet^  neque 
damnum  se  prcestaturum,,  et  conseyiserint  vectores  predictioni,  non 
convenitur. 

It  will  be  observed  in  the  text  cited,  that  the  master  of  the  ship 
limits  his  liability  only  by  the  actual  consent  of  the  passengers.  In 
the  present  case,  this  right  is  claimed  to  the  innkeeper  without  such 
express  consent  of  the  traveller. 

Without  reviewing  the  cases,  or  entering  into  the  prolix  discussions 
which  this  question  has  given  rise  to  in  France,  England,  and  the  United 
States,  it  is  sufficient  to  say  that  we  think  the  district  judge  very  cor- 
rectly took  a  distinction  between  articles  of  value  and  those  ordinaril}' 
worn,  together  with  such  small  sums  of  mone}'  as  are  usually  carried 
about  the  person.  He  says,  in  conclusion  :  "  They(innkecpers)  have 
no   right   to   require  a  traveller  to  deliver  up  to  them  his  necessary 


FULLER   V.    COATS.  451 

baggage,  his  watch,  which  adorns  his  person  and  is  a  part  of  his  per- 
sonal apparel,  and  the  money  which  he  has  about  him  for  his  personal 
use.  Such  a  regulation  is  contrary  to  law  and  reason.  If  he  had  large 
sums  of  money  or  valuables  the  rules  might  be  different. 

Under  this  view  of  the  case,  which  we  adopt,  it  is  a  matter  of  indif- 
ference whether  the  plaintitT  did  or  did  not  read  the  notices  posted  in 
the  hotel. 

The  traveller  who  arrives  at  the  inn  where  he  intends  to  lodge  during 
the  night,  ought  not  to  be  required  to  part  with  his  watch  which  may 
be  necessary  to  him  to  regulate  his  rising,  or  to  know  when  the 
time  of  departure  of  the  morning  train  or  boat  has  arrived.  Neither 
ought  he  to  be  required  to  deposit  with  the  innkeeper  such  small  sums 
of  money  as  are  usually  carried  by  the  majority  of  persons  in  the  like 
condition  in  life  visiting  such  hotel. 

The  innkeeper  should  provide  safe  locks  or  fastenings  to  the  rooms, 
and  in  default  of  the  same,  he  must  be  held  responsible  for  the  loss  of 
such  articles  of  apparel  and  small  sums  of  money  as  are  usuall}' 
carried  or  worn  by  the  class  of  persons  favoring  the  hotel  with  their 
patronage. 

The  estimate  of  the  damage  sustained  by  the  plaintiff  is  justified  by 
the  proof.  Judgment  affirmed. 

VooRHiES,  J.,  absent. 


FULLER  V.   COATS. 
Supreme  Court  of  Ohio,  1868. 

[18  Oh.  St.  343.] 

The«  original  action  was  brought  by  the  plaintiff  to  recover  of  the 
defendants  the  value  of  an  overcoat  and  articles  in  the  pockets  thereof, 
alleged  to  have  been  lost  from  the  hotel  of  the  defendants  while  the 
plaintiff  was  a  guest  therein.  The  petition  contains  the  ordinary  aver- 
ments to  charge  upon  the  innkeepers  a  liability  for  the  loss  of  the  goods 
of  their  guest. 

The  answer  denies  the  material  averments  in  the  petition  ;  and,  by 
way  of  defence,  alleges  that  the  defendants  "■  had  prepared  a  place  in 
their  office  for  the  deposit  of  overcoats,  and  other  articles  of  personal 
apparel  not  left  in  the  rooms  as  baggage,  and  kept  there  a  person  to 
receive  such  articles  and  give  to  the  owner  a  check  therefor,  and  they 
required  guests  to  so  deposit  such  articles  ;  of  all  which  the  plaintiff 
had  notice  ;  that  the  plaintiff  neglected  and  omitted  to  leave  his  over- 
coat, with  its  contents,  in  the  custody  of  defendants,  but  carelessly  and 
negligently  hung  the  same  up  in  the  open  hall  of  the  inn  without  any 
notice  to  the  defendants,  and  without  any  knowledge  on  their  part  that 
he  had  so  negligently  exposed  the  same  ;  and  that  while  so  carelessly 
exposed  by  the  plaintiff,  said  overcoat  was,  without  the  knowledge  or 


452  FULLER    V.   COATS. 

fault  of  the  defendants,  stolen,  as  they  suppose.  And  so  the  defend- 
ants say  that  said  overcoat  was  lost  through  and  b}-  reason  of  care- 
lessness and  negligence  of  the  plaintiff,  and  that  the  negligence  of  the 
plaintiff  contributed  to  the  loss  thereof." 

The  plaintiff"  denies,  in  his  reply,  that  he  had  "  notice  that  defend- 
ants required  their  guests  to  deposit  overcoats  in  a  place  whicli  de- 
fendants had  prepared  for  that  purpose  ;  and  denies  tliat  he  negligently 
or  carelessly  left  said  overcoat  in  an  open  hall,  or  that  he  in  any  way, 
bj"  an}'  carelessness  of  himself,  contributed  to  its  loss." 

The  case  was  tried  to  a  jury.  On  the  trial  the  plaintiff  proved  that 
he  was  a  guest  at  the  hotel  of  the  defendants  on  the  12th  of  December, 
1865,  when  the  coat  was  lost ;  that  he  came  down  from  his  room,  late 
in  the  morning,  to  breakfast,  with  his  overcoat,  and,  instead  of  going 
to  the  office,  he  hung  up  liis  coat  in  the  hall,  where  there  were  three  or 
four  rows  of  hooks,  and  went  into  breakfast  from  the  hall ;  and  that 
when  lie  came  out  his  coat  was  gone.  The  plaintiff  testified,  on  cross- 
examination,  that  lie  knew  there  was  a  place  at  the  office  where  carpet- 
bags and  coats  were  taken  and  checks  given  therefor,  and  that  he  had 
before  deposited  coats  at  the  office. 

One  of  the  defendants  testified  that  they  kept  a  place  back  of  the 
counter,  in  the  oflflce,  where  they  kept  and  checked  coats  and  satchels  ; 
that  he  had  frequently  checked  the  plaintilfs  satchel  ther  3  before  the 
12th  of  December;  that  they  ke[)t  some  one  there  to  receive  these 
articles  and  give  checks  therefor ;  that  the  plaintiff  had  stayed  there 
at  different  times  before  for  several  days  at  a  time  ;  and  that  when  the 
coat  was  lost,  a  general  search  was  made  for  it,  and  it  could  not  be 
found  ;  that  the  hooks  in  the  hall  were  for  hats,  and  were  placed  in  three 
or  four  rows,  beginning  two  or  three  feet  from  the  floor ;  that  they  had 
large  printed  notices  in  the  oflflce  and  some  other  rooms  (but  not  in  the 
hall),  that  "  persons  stopping  at  this  hotel  will  please  have  their  bag- 
gage checked,  carpet-bags,  and  coats  ;  and  if  they  have  any  diamonds, 
precious  stones,  watches,  or  jewelry,  thev  must  be  kept  in  the  office,  in 
order  to  make  the  proprietors  responsible." 

The  court  charged  tlie  jury  as  follows  : 

*'  4.  The  defendants  had  a  i-iglit  to  require  that  the  plaintiff  should 
place  his  overcoat,  &c.,  in  a  designated  place  in  the  office,  or  keep  it 
in  his  own  room  when  it  is  not  on  his  own  person,  or  in  his  own  per- 
sonal custody  ;  and  if  they  did  so  require,  and  brought  this  requirement 
to  the  knowledge  of  the  plaintiff;  and  if  you  shall  find  that  the  require- 
ment was  a  reasonal)le  one,  and  that  the  property  was  lost  in  conse- 
quence of  the  refusal  or  neglect  of  tiie  plaintiff  to  comply  with  such 
reasonable  precaution,  he  is  not  entitled  to  recover  in  this  action. 

"■  5.  The  defendants  had  the  right  to  make  reasonable  rules  and 
regulations  for  their  own  protection,  and  to  limit,  to  some  extent,  their 
liability  ;  but,  in  order  to  so  limit  their  liability  in  this  case,  it  must  be 
shown  that  the  knowledge  of  the  existence  of  such  a  rule  or  regulation 
was  brought  home  to  the  plaintiff  before  the  loss  of  his  property. 


FULLER    V.    COATS.  453 

"6.  A  printed  request  merely  posted  in  the  rooms  of  the  house, 
requesting  or  asking  guests  to  leave  their  overcoats,  carpet-sacks,  or 
other  baggage  in  the  care  of  the  landlord  or  his  servants  in  the  office, 
will  not  relieve  the  defendants  from  liability  in  case  of  its  loss.  To 
have  this  effect,  the  notice  must  state  in  clear  and  unequivocal  terms 
that  they  will  not  be  responsible  for  the  loss  unless  tlie  property  is  left 
in  the  office,  or  other  designated  place  ;  and  must  be  brought  to  the 
knowledge  of  the  guest." 

The  jury  returned  a  verdict  for  the  defendants.  The  plaintiff  moved 
for  a  new  trial,  on  the  ground  [among  others]  that  the  court  erred  in 
the  charge  to  the  jury.  The  court  overruled  the  motion  for  a  new  trial; 
to  which  exception  was  taken.^ 

Day,  C.  J.  Three  classes  of  questions  are  raised  in  this  case  in 
which,  it  is  claimed,  the  court  below  erred:  1.  In  permitting  the  de- 
fendant to  ask  his  witnesses  on  the  trial  illegal  questions  ;  2.  In  the 
refusal  of  tlie  court  to  charge  the  jury  as  requested  by  the  plaintiff,  and 
in  the  charge  given  ;  3.    In  overruling  tlie  motion  for  a  new  trial. 

Nothing  practically  will  be  gained  by  considering  here  at  length  the 
separate  questions  raised  by  the  objections  of  the  plaintiff  to  the  ques- 
tions propounded  by  the  defendants  to  their  witnesses  on  the  trial ;  for 
some  of  the  objections  are  based  upon  grounds  that  must  be  considered 
in  another  form,  arising  upon  the  charge  to  the  jury;-  some  of  the 
questions  were  unobjectionable,  and  of  little  or  no  importance  ;  but 
chiefly  for  the  reason  that  the  testimony  elicited  on  all  the  questions  in 
no  way  tended  to  prejudice  the  plaintiff;  and  for  that  reason,  under  the 
provisions  of  the  138th  section  of  the  code,  the  ruling  of  the  court  on 
that  class  of  questions  will  not  afford  sufficient  ground  to  disturb  the 
judgment. 

Did  the  court  erroneously"  charge  the  jury? 

By  the  statute  of  this  State  the  common-law  responsibilit}'  of  inn- 
keepers, as  to  all  goods  therein  enumerated,  is  materiall}'  modified. 
The  goods  sued  for  in  this  case  are  not  mentioned  in  the  act;  it  has, 
therefore,  no  application  to  the  case,  further  than  the  reason  of  the 
legislative  policy  on  which  it  is  based  ma}'  be  regarded  in  deciding 
cases  between  conflicting  constructions  of  the  rules  of  common  law,  by 
which  this  case  must  be  determined. 

It  is  claimed  that  the  common  law  makes  an  innkeeper  an  insurer  of 
the  goods  of  his  guest,  as  it  does  a  common  carrier  of  goods,  against 
all  loss,  except  that  occasioned  b}"  act  of  God  or  the  public  enem}-. 

The  rules  of  the  law  controlling  both  these  classes  of  liabilit}"  have 
their  foundation  in  considerations  of  public  utility  ;  but  it  does  not 
therefore  follow  that  the  rule  in  every  case  is  precisely  the  same.  It 
would  seem,  rather,  that  where  the  circumstances  of  the  two  classes 
differ,  public  utility  might  reasonabl}"  require  a  corresponding  modifi- 
cation of  the  rules  applicable  to  the  case. 

1  Ouly  so  much  of  the  case  as  involves  the  validity  of  tlie  regulations  is  given. 
—  Ed, 


454  FULLEK   V.    COATS. 

Common  carriers  ordinaril}'  have  entire  custod}'  and  control  of  the 
goods  intrusted  to  them,  with  every  opportunity  for  undiscoverable 
negligence  and  fraud  ;  and  are  therefore  held  to  the  most  rigid  rules  (;f 
liability.  Innkeepers  may  have  no  such  custody  of  the  goods  of  their 
guests.  In  many  instances  their  custod}'  of  the  goods  is  mixed  with 
that  of  the  guest.  In  such  cases  it  would  be  but  reasonable  that  the 
guest,  on  his  part,  should  not  be  negligent  of  the  care  of  his  goods,  if 
he  would  hold  another  z'esponsible  for  them.  The  case  of  a  carrier  and 
that  of  an  innkeeper  are  analogous  ;  but,  to  make  them  alike,  the 
goods  of  the  guest  must  be  surrendered  to  the  actual  custody  of  the 
innkeeper ;  then  the  rule  would,  undoubtedly,  be  the  same  in  both 
cases. 

We  are  not,  however,  disposed  to  relax  the  rules  of  liability  ap- 
plicable to  innkeepers,  nor  to  declare  that  the}'  are  different  from  those 
applying  to  carriers,  further  than  a  difference  of  circumstances  between 
innkeeper  and  guest  may  reasonabh-  necessitate  some  care  on  the  part 
of  the  latter. 

The  charge  of  the  court  below  is  not  inconsistent  with  a  recognition 
of  the  same  extent  of  liability  in  both  classes  of  cases  ;  for  it  is  well 
settled  that  an  action  against  a  carrier  cannot  be  maintained  where 
the  plaintiff's  negligence  caused,  or  directly  contributed  to  the  loss  or 
injury.  Upon  this  theory,  and  assuming  to  the  fullest  extent  ihe  pri?na 
facie  liability  of  the  innkeeper,  by  reason  of  the  loss,  the  court  said  to 
the  jur}' :  "The  only  question  for  your  consideration  is  whether  the 
plaintiff's  negligence  caused,  or  directly  contributed  to,  the  loss  of  the 
property." 

It  was  thus  held  by  the  court,  and  conceded  bj'  the  counsel  for  the 
plaintiff,  that  if  the  property  was  "  lost  by  reason  of  the  negligence  of 
the  plaintiff  to  exercise  ordinary  care  for  its  safety-,"  the  defendants 
were  not  liable. 

The  essential  question,  then,  between  the  parties  is,  what,  on  the 
part  of  the  guest,  is  ordinary  care,  or  wnat  may  be  attributed  to  him 
as  negligence. 

It  is  claimed  that  the  court  erred  in  relation  to  this  point,  in  two 
particulars:  1.  In  holding  that  the  guest  might  be  chargeable  with 
negligence,  in  the  care  of  his  goods,  in  any  case  where  they  were  not 
actually  upon  his  person;  2.  In  holding  that  the  innkeeper  could,  in 
any  manner,  limit  his  liability  for  the  loss  of  the  goods  of  his  guest, 
except  by  contract  with  liim. 

If  the  guest  take  his  goods  into  his  own  personal  and  exclusive  con- 
trol, and  they  are  lost,  while  so  held  by  him,  through  his  own  neglect, 
it  would  not  be  reasonable  or  just  to  hold  another  responsible  for  them. 
This  is  conceded  to  be  true  as  to  the  clothes  on  the  person  of  the  guest, 
but  is  denied  as  to  property  otherwise  held  by  him.  There  is  no  good 
reason  for  the  distinction  ;  for  the  exemption  of  the  innkeeper  from 
liability  is  based  upon  the  idea  that  the  property  is  not  held  as  that  of 
a  guest,  subject  to  the  care  of  the  innkeeper,  but  upon  the  responsi- 


FULLER    V.   COATS.  455 

bility  of  the  guest  alone  ;  and,  therefore,  it  makes  no  difference,  in 
[)rinciple,  whether  it  is  on  his  person  or  otherwise  equally  under  his 
exclusive  control.  But  this  noust  be  an  exclusive  custody  and  control 
of  the  guest,  and  must  not  be  held  under  the  supervision  and  care  of 
the  innkeeper,  as  where  the  goods  are  kept  in  a  room  assigned  to 
the  guest,  or  other  proper  depository  in  the  house. 

The  public  good  requires  that  the  property  of  travellers  at  hotels 
should  be  protected  from  loss  ;  and,  for  that  reason,  innkeepers  ixw 
held  responsible  for  its  safet}'.  To  enable  the  innkeeper  to  discharge 
his  dut}',  and  to  secure  the  property  of  the  traveller  from  loss,  while  in 
a  house  ever  open  to  the  public,  it  may,  in  many  instances,  become 
absolutely  necessarj-  for  him  to  provide  special  means,  and  to  make 
necessary  regulations  and  requirements  to  be  observed  by  the  guest,  to 
secure  the  safety  of  his  propert}-.  When  such  means  and  requirements 
are  reasonable  and  proper  for  that  purpose,  and  they  are  brought  to 
the  knowledge  of  the  guest,  with  the  information  that,  if  not  observed 
by  him,  the  innkeeper  will  not  be  responsible,  ordinary  prudence,  the 
interest  of  both  parties,  and  public  polic}',  would  require  of  the  guest  a 
compliance  therewith  ;  and  if  he  should  fail  to  do  so,  and  his  goods  are 
lost,  solely  for  that  reason,  he  would  justlj*  and  properly  be  chargeal)le 
with  negligence.  To  hold  otherwise,  would  subject  a  party  without 
fault  to  the  payment  of  damages  to  a  party  for  loss  occasioned  by  his 
own  negligence,  and  would  be  carrying  the  liabilit}'  of  innkeepers 
to  an  unreasonable  extent.  Story's  Bail.  sees.  472,  483 ;  Ashill 
V.  Wright,  6  El.  &  Bl.  890;  Purvis  v.  Coleman,  21  N.  Y.  Ill  ;  Berk- 
shire Woolen  Co.  v.  Proctor,  7  Cush.  417. 

Nor  does  the  rule  thus  indicated  militate  against  the  well-establislied 
rule  in  relation  to  the  inability  of  carriers  to  limit  their  liability  ;  for  it 
rests  upon  the  necessity  that,  under  different  circumstances  of  the  case, 
requires  the  guest  to  exercise  reasonable  prudence  and  care  for  the 
safety  of  his  property. 

In  connection  with  the  two  foregoing  propositions,  the  correctness  of 
the  holding  of  the  court  below,  as  stated  in  the  seventh  paragraph  of 
the  charge,  is  questioned.  Without  repeating  that  paragraph  here,  it 
is  only  necessary  to  say  that  upon  the  hypothesis  there  stated,  the 
guest,  b}'  what  lie  did  and  neglected  to  do,  would  directly  contribute  to 
the  loss  of  his  property.     The  charge  was  therefore  right. 

Taking  the  whole  charge  together,  so  far  as  it  related  to  the  case, 
and  is  controverted,  it  is  in  harmony  with  the  views  herein  expressed, 
and  must  therefore  be  approved.  It  also  follows,  from  what  has  been 
said,  that  the  court  did  not  erroneousl}'  refuse  to  charge  the  jur}'  as  re- 
quested liy  the  plaintiff.  The  request  contained  a  connected  series  of 
propositions,  some  of  which,  at  least,  were  unsound  in  law.  It  is  well 
settled  that  in  such  a  case  the  court  may  properly  refuse  the  whole. 

It  I'emains  to  be  considered  whether  the  court  erroneously  overruled 
ihe  motion  for  a  new  trial,  on  the  ground  that  the  verdict  was  against 
the  evidence. 


456  REESE    V.    PENNSYLVANIA    RAILROAD. 

While  we  are  not  clear  from  doubt  on  this  point,  upon  a  careful 
consideration  of  the  evidence  we  are  constrained  to  say  that  the  verdict 
is  not  so  clearl}'  against  the  evidence  as  to  warrant  us  in  holding  that 
the  court  erred  in  refusing  to  set  it  aside.  Judgment  affirmed} 


REESE  V.  PENNSYLVANIA  RAILROAD. 
Supreme  Court  of  Pennsylvania,   1890. 

[131   Pa.  422.] 

On  October  31,  1888,  L,  B.  D.  Reese  brought  trespass  against  the 
Pennsylvania  Railroad  Company  to  recover  damages  for  the  alleged 
unlawful  ejecting  of  the  plaintiff  from  a  passenger  train  of  the 
defendant.     Issue. 

At  the  trial  on  September  17,  1889,  the  following  facts  were  shown  : 
Al)out  eleven  o'clock  on  the  evening  of  October  24,  1888,  the  plaintiff, 
in  company  with  two  friends,  boarded  a  passenger  train  of  the  defendant 
company"  at'  East  Liberty  station,  in  the  cit}'  of  Pittsburgh,  for  the  pur- 
pose of  going  to  the  Union  station  in  said  city.  The  testimony  for  tlie 
plaintiff  tended  to  prove  that  the}-  arrived  at  East  Liberty  station  just 
as  tlie  train  was  about  to  start,  and  too  late  to  get  tickets  ;  wliile 
witnesses  for  the  defendant  testified  that  the  plaintiff  and  his  com- 
panions were  at  the  station  some  minutes  before  the  train  left.  The 
ticket  office  at  East  Liberty  was  kept  open  the  usual  length  of  time 
prior  to  the  departure  of  that  train,  and  afforded  all  persons  who  were 
at  the  station  before  it  started  an  opportunity  to  procure  tickets. 

The  defendant  company  was  incorporated  by  Act  of  April  13,  1846, 
P.  L.  312,  §  21  of  which  provides  that  "  in  the  transportation  of  pas- 
sengers, no  charge  shall  be  made  to  exceed  three  cents  per  mile  for 
through  passengers,  and  three  and  one-half  cents  per  mile  for  way 
passengers." 

After  the  train  had  started,  the  conductor  called  upon  the  plaintiff 
for  bis  ticket,  when  the  plaintiff  stated  that  he  had  none  and  tendered 
to  the  conductor  the  sum  of  fourteen  cents  in  cash.  The  distance 
between  the  East  Liberty  and  Union  stations  is  four  and  one  half 
miles,  and  the  regular  and  uniform  fare  charged  by  the  defendant 
between  those  points  was  fourteen  cents,  being  at  the  rate  of  three 
cents  a  mile.  Tlie  compan}',  however,  had  a  regulation  requiring  pas- 
sengers without  tickets  to  pa}-  to  the  conductor,  in  addition  to  the 
leguiar  fare  of  three  cents  per  mile,  the  additional  sum  of  ten  cents. 
The  amount  so  to  l)e  paid  in  excess  of  the  regular  fare  was  uniform 
in  all  cases,  irrespective  of  the  distance  the  passenger  was  travelling, 

1  Compare  :  Milford  v.  Wesley,  1  Wilson,  119;  Bodwell  v.  Bragg,  29  la.  232;  Pope 
V.  Hall,  14  La.  Ann.  324.  — Ed. 


KEESE    V.   PENNSYLVANIA    RAILROAD.  457 

and  upon  its  pa^-ment  the  conductor  was  required  to  give  to  the  pas- 
senger a  memorandum  or  clieek,  signed  by  tlie  general  passenger  agent 
of  the  company,  redeemable  at  ten  cents  on  presentation  at  any  ticliet 
office  of  the  company  along  its  road.  This  memorandum  is  known  as 
a  "  duplex  ticket,"  the  conductor  being  required  to  retain  and  forward 
to  the  auditor  of  passenger  receipts  a  duplicate  of  each  one  issued. 
It  is  printed  upon  a  form  so  arranged  that  the  stations  from  and  to 
which  fare  is  collected  can  be  indicated  upon  it  by  punch  marks,  and 
conductors  are  required  to  do  this  in  all  cases.  Of  this  regulation, 
notice  was  given  to  the  public  by  i)rinted  cards  posted  at  the  company's 
ticket  offices. 

Acting  under  the  regulation  of  the  company  respecting  the  payment 
of  cash  fares,  the  conductor  refused  to  accept  the  fourteen  cents 
tendered  him  by  the  plaintiff  and  demanded  twent3--four  cents.  The 
plaintiff  declined  absolutely  to  pay  more  than  fourteen  cents,  wliereupon 
he  was  put  off  the  train  at  Roup  station. 

The  jury  rendered  the  following  verdict:  "We  find  for  the  plaintiff 
in  the  sum  of  two  hundred  and  fift\-  dollars  ($250).  And  we  have 
further  answered  the  annexed  questions  submitted  to  us  for  answer  as 
part  of  the  verdict: 

"  1.  Did  the  plaintiff,  Mr.  Reese,  on  the  evening  in  question,  arrive 
at  the  East  Liberty  station  in  time  to  procure  a  ticket  before  getting 
on  the  train  ? 

"No." 

"  2.  Did  the  conductor,  when  demanding  from  the  plaintiff  twenty- 
four  cents  fare,  or  before  putting  him  off  the  train,  inform  hiui  tliat  he 
would  obtain  a  receipt  entitling  him  to  be  repaid  ten  cents  of  the  fare 
on  presentation  at  the  proper  office  ;  or  did  Mr.  Reese  know  tliat  such 
was  the  regulation  ? 

"  No." 

Judgment  having  been  entered  upon  the  verdict,  the  defendant  took 
this  appeal.^ 

Mitchell,  J.,  the  right  of  railroad  companies  to  make  reasonable 
regulations,  not  only  as  to  the  amounts  of  fares,  but  as  to  the  time, 
place,  and  mode  of  payment,  is  unquestionable.  This  right  includes 
the  right  to  refuse  altogether  to  carrv  without  the  previous  procure- 
ment of  a  ticket.  Lake  Shore,  &c.  Ry.  Co.  v.  Greenwood,  79  Pa.  373. 
That  case  arose  upon  a  special  regulation  as  to  the  carriage  of  pas- 
sengers upon  freight  trains  ;  but  there  is  no  appreciable  distinction 
between  it  and  a  general  regulation  as  to  all  passengers.  Both  rest  on 
the  common-law  principle  that  requires  payment  or  tender  as  an  indis- 
pensable preliminar}'  to  holdiug  a  carrier  liable  for  refusal  to  carr}",  and 
on  the  manifest  and  necessar}'   convenience  of   business,   where   the 

^  The  points  assigued  for  error  were :  1,  refusal  of  the  trial  court  to  charge  that 
the  regulation  was  reasonable  and  legal ;  2,  charge  of  the  court  that  the  amount 
demanded  was  in  excess  of  the  statutory  amount. 

The  statement  of  facts  has  been  abriilged  and  arguments  of  counsel  omitted. — Ed. 


438  REESE   V.    PENNSYLVANIA    RAILROAD. 

number  of  passengers  is  liable  to  be  large  and  the  time  for  serving 
them  short. 

So,  too,  the  authorities  are  uniform  that  companies  ma\'  charge  an 
additional  or  higher  rate  of  fare  to  those  who  do  not  purchase  tickets 
before  entering  the  cars.  Crocker  v.  Railroad  Co.,  24  Conn.  249; 
Swan  V.  Railroad  Co.,  132  Mass.  116  ;  liilliard  v.  Goold,  34  N.  H.  241  ; 
Stephen  i\  Smith,  29  Vt.  IGO  ;  State  v.  Goold,  53  xMe.  279  ;  State  v. 
Chovin,  7  Iowa,  208  ;  Du  Laurans  v.  Railroad  Co.,  15  Minn.  49  ;  State 
V.  Hungerford,  39  Minn.  6  (34  Amer.  &  Eng.  R.  Cas.  265),  and  note; 
Cliicago,  &c.  R.  Co.  v.  Parks,  18  111.  460  ;  Pullman  Co.  v.  Reed,  75  111. 
130;  Railroad  Co.  v.  Skillman,  39  Ohio,  451  ;  Forsee  v.  Railroad  Co., 
63  Miss.  67.  And  it  may  be  noted,  in  response  to  one  of  the  most 
urgently  pressed  arguments  of  the  defendant  in  error,  that  the  reasons 
almost  uniformly  given  in  support  of  this  long  line  of  decisions  include 
the  furthering  of  the  honest,  orderly,  and  convenient  conduct  by  the 
railroad  company  of  its  own  business. 

The  regulation  in  question  in  the  present  case,  is  not  in  itself  un- 
reasonable or  oppressive.  In  regard  to  the  traveller,  it  is  scarcely'  just 
ground  of  complaint  that  he  has  to  present  his  refunding  ticket  at  the 
end  of  his  journey,  instead  of  getting  an  ordinary  ticket  at  the  start. 
The  inconvenience,  if  any,  is  the  result  of  his  own  default.  With 
reference  to  the  other  passengers,  and  still  more  to  the  railroad  com- 
pany, the  regulation  is  conducive  to  the  rapid,  orderly,  and  convenient 
despatch  of  the  conductor's  part  in  the  collection  of  fares,  and  thus  to 
leaving  him  free  for  the  performance  of  his  other  duties  in  connection 
with  the  stops  at  stations,  the  entrance  and  exit  of  passengers,  and 
the  general  supervision  of  the  safet}'  and  comfort  of  those  under  his 
care. 

If,  therefore,  the  company  may  refuse  to  carry  at  all  without  a  ticket, 
it  may  fairly  refuse  under  the  far  less  inconvenient  alternative  to  the 
traveller  of  patting  him  to  the  trouble  of  going  to  an  office  to  get  his 
excess  refunded.  If  the  companj-  may  charge  those  failing  to  get  a 
ticket  an  additional  price,  and  keep  it,  certainly  they  ma}-  charge  such 
price  and  refund  it ;  and,  as  the  regulation  is  not  in  itself  unreasonable 
or  oppressive,  or  needlessly  inconvenient  to  the  traveller,  its  validit_y, 
upon  general  principles  and  on  authority,  would  seem  to  be  beyond 
question. 

These  views  were  conceded  b}'  the  learned  judge  below,  and  are  not 
seriousl}'  questioned  by  counsel  here.  But  tlie  decision  was  based  upon 
the  view  that  the  extra  ten  cents  imposed  b}'  this  regulation  is  a  part 
of  the  fare,  and  makes  it  higher  than  the  rate  allowed  by  the  act  of 
incorporation  of  the  comi)any.  The  language  of  the  act  is,  "  In  the 
transportation  of  passengers  no  charge  shall  be  made  to  exceed  .  .  . 
three  and  one-half  cents  per  mile  for  wa}'  passengers."  As  the  dis- 
tance fiom  East  Liberty  station  to  the  Union  station  in  Pittsburgh  is 
four  and  one-half  miles,  and  the  regular  fare  fourteen  cents,  it  is  ad- 
mitted that  the  extra  ten  cents  is  in  excess  of  the  charter  rate,  if  it  is 


EEESE   V.   PENNSYLVANIA    RAILROAD.  459 

a  "charge  for  transportation"  witliin  the  meaning  of  the  act.  Shoukl 
it  be  so  regarded?  "  Charge"  is  a  word  of  very  general  and  varied 
use.  Webster  gives  it  thirteen  different  meanings,  none  of  which, 
however,  expresses  the  exact  sense  in  which  it  is  used  in  this  charter. 
The  great  dictionarj-  of  the  Philological  Society,  now  in  course  of 
publication,  gives  it  twenty  separate  principal  dufinitions,  besides  a 
nearly  equal  number  of  subordinate  variations  of  meaning.  Of  these 
definitions,  one  (10  b)  is,  "The  price  required  or  demanded  for  service 
rendered,  or  (less  usually)  for  goods  supplied  ;"  and  this  expresses 
accurately  the  sense  of  the  word  in  the  present  case.  The  essence  of 
the  meaning  is  that  it  is  something  required,  exacted,  or  taken  from 
the  traveller  as  compensation  for  the  service  rendered,  and,  of  course, 
something  taken  permanently,  —  not  taken  temporarily,  and  returned. 
The  purpose  of  the  restriction  in  the  charter  is  the  regulation  of  the 
amount  of  fares,  not  of  the  mode  of  collection  ;  the  protection  of  the 
traveller  from  excessive  demands,  not  interference  with  the  time,  place, 
or  mode  of  payment.  These  are  mere  administrative  details,  which 
depend  on  varying  circumstances,  and  are  therefore  left  to  the  ordinar}- 
course  of  business  management.  We  fail  to  see  anything  in  the  present 
regulation  which  can  properly  be  treated  as  an  excessive  charge,  within 
the  prohibition  of  the  charter. 

Nor  is  there  any  force  in  the  objection  that  this  regulation  is  un- 
reasonable. It  is  said  not  to  be  general,  fair,  and  impartial,  because 
it  provides  that  as  to  passengers  getting  on  the  train  at  stations  where 
there  is  no  ticket  office,  &c.,  or  on  trains  where,  on  account  of  the 
excessive  rush  of  business,  it  is  impossible  to  issue  the  refunding 
check,  tlie  collection  of  the  excess  shall  be  omitted.  The  objection 
overlooks  the  necessary-  qualiGcations  to  the  validity-  of  such  a  regula- 
tion. All  the  cases  are  agreed  that  the  regulation  would  be  unreason- 
able, and  therefore  void,  unless  the  carrier  should  give  the  passenger  a 
convenient  place  and  opportunity  to  bu\"  his  ticket  before  entering  the 
train.  This  part  of  the  regulation  mereh'  puts  in  express  words  a 
necessary  exception  which  the  law  would  otherwise  imply.  So,  as  to 
the  excessive  rush  of  business.  Reasonableness  depends  on  circum- 
stances. To  collect  the  extra  amount  and  issue  return  checks  to  as 
many  passengers  as  the  conductor  could  reach  in  time,  and  let  all 
oihers  go  free  entirely,  would  be  much  more  unreasonable  than  to 
treat  all  alike  and  dispense  with  the  regulation  for  the  time  being. 
Necessity  modifies  the  application  of  all  rules,  and  there  is  nothing 
unreasonable  in  requiring  the  conductor  to  exercise  sufficient  foresight 
to  see  wliether  he  can  perform  the  prescribed  duty  in  the  available 
time,  and  investing  him  with  the  discretion  to  omit  it  altogether,  if,  in 
his  judgment,  he  cannot  perform  it  full}'. 

No  authorities  preciselv  in  point  have  been  found  upon  either  side. 
The  cases  cited  by  the  defendant  in  error,  from  Kentucky  and  Ohio, 
are  widely  distinguishable,  as  the}-  were  cases  of  absolute  charge  be- 
yond the  charter  limit,  without  any  provision  for  return  of  the  excess 


460  FORSEE   V.    ALABAMA.    GREAT   SOUTHERN    RAILROAD. 

to  the  traveller.  But  on  well-settled  principles  we  are  of  opinion  that 
the  regulation  is  reasonable  in  itself,  and  not  in  violation  of  the  re- 
striction in  the  act  of  incorj)oration.  The  defendant's  first  point  should 
therefore  have  been  affirmed.  Judgment  reversed. 


FORSEE  V.  ALABAMA  GREAT  SOUTHERN  RAILROAD. 
Supreme  Court   of   Mississippi,  1885. 

[63  Miss.  66.] 

About  nine  o'clock  p.  m.,  on  September  20,  1884,  S.  P.  Forsee  went 
to  the  ticket  office  of  the  Alabama  Great  Southern  R.  R.  Co.  at 
Toomsuba,  for  the  purpose  of  buying  a  ticket  and  taking  passage  for 
Meridian  on  that  company's  train,  which  was  due  at  Toomsuba  at 
about  half-past  nine  o'clock  p.  m.  The  depot  was  dark,  no  ticket 
agent  could  be  seen  or  found,  and  as  it  was  raining  slightly  Forsee  and 
his  companion,  one  Poole,  left  the  depot,  where,  as  they  claimed,  there 
was  no  adequate  shelter,  and  went  over  to  a  store  near  by,  but  from 
which  they  could  still  view  the  depot  and  watch  for  the  train.  No  one 
was  seen  about  the  depot  until  the  train  approached,  when  a  man  with 
a  mail  bag  ran  out.  Forsee  seized  him  and  said  to  him  that  he  had 
tried  to  get  a  ticket  but  liad  not  been  able  to  find  an}'  one  at  the  depot. 
The  man,  who  proved  to  be  the  agent,  replied  that  it  was  then  too  late. 
Forsee  went  to  the  conductor  and  told  him  that  he  had  been  unable  to 
bu}'  a  ticket  because  the  agent  was  not  on  hand.  Forsee  then  boarded 
the  train,  and  when  the  conductor  came  to  him  for  his  fare  again  told 
him  he  had  no  ticket  and  why  he  had  failed  to  get  one,  but  tendered 
him  thirt3'-five  cents,  the  amount  of  the  regular  ticket  rate  between 
Toomsuba  and  Meridian.  The  conductor  declined  to  receive  it,  and 
demanded  fifty  cents,  explaining  to  Forsee  that  his  instructions  were 
positive  to  collect  fifty  cents  from  passengers  going  from  one  to  the 
other  point  mentioned  who  failed  to  purchase  tickets.  Forsee  still 
refused  to  pay  more,  when  the  conductor  stopped  the  train,  seized 
Forsee,  and  with  the  assistance  of  two  train  men  was  about  to  put  him 
off.  Forsee,  rather  tlian  be  put  off,  paid  fifty  cents  under  protest,  and 
afterward  brought  this  action  to  recover  damages  for  the  alleged  injury 
that  resulted  to  him  from  the  neglect  and  wrongful  conduct  of  the  rail- 
road com[)any's  agents. 

Plaintiff  introduced  evidence  tending  to  sliow  that  the  conductor 
acted  in  a  rougli,  insulting,  and  insolent  manner,  while  the  defence 
introduced  evidence  tending  to  show  the  opposite,  and  that  the  con- 
ductor used  no  more  force  than  was  necessary. 

Plaintiff  offered  to  prove  by  witnesses  and  by  the  deposition  of  one 
C.  P.  Blanks  that  the  acting  ticket  agent  was  a  boy  of  sixteen  years, 


FORSEE    V.    ALABAMA    GREAT    SOUTHERN    RAILROAD.  461 

that  he  was  careless  and  indifferent,  and  tliat  he  had  been  previously 
reported  to  defendant  for  neglecting  his  duties.  This  evidence  the 
court  below  refused  to  admit. 

Plaintiff  furtlier  offered  to  prove  by  two  witnesses  that  he  was  at  the 
time  in  a  delicate  state  of  health,  and  that  he  would  have  probably 
received  serious  and  permanent  injuries  had  he  been  put  off  the  train, 
and  that  owing  to  the  delicate  state  of  his  healtii,  any  undue  excite- 
ment of  mind  was  injurious,  l)ut  the  court  below  refused  to  admit  such 
testimony. 

Plaintiff  also  offered  to  prove  that  on  the  day  following  his  attempt 
to  purchase  the  ticket,  the  ticket  agent  had  admitted  to  some  third 
person  that  he  was  asleep  before  and  on  the  arrival  of  tiie  train  on  the 
day  in  question,  and  that  the  depot  was  not  lighted  ;  and  this  evidence 
the  court  below  refused  to  admit.  The  jur}'  rendered  a  verdict  for 
l)laintiff,  and  fixed  his  damages  at  fifty  dollars,  and  thereupon  the  court 
adjudged  that  each  party  pay  his  own  costs.     The  plaintiff  appealed. 

AuNOLD,  J.  There  was  no  error  in  sustaining  the  objection  to  the 
[iroposed  testimony  in  regard  to  appellant's  health.  It  is  not  claimed 
lliat  his  health  was  affected  by  the  occurrence  of  which  he  complains, 
and  evidence  on  that  subject  was  irrelevant. 

The  testimony  offered,  including  the  deposition  of  C.  P.  Blanks  in 
regard  to  the  character  of  the  ticket  agent,  was  properly  excluded.  It 
was  shown  that  the  agent  was  not  at  his  post,  and  that  the  ticket  office 
was  not  open  in  time  for  appellant  to  obtain  a  ticket,  and  the  character 
of  the  agent  under  these  circumstances  ,was  immaterial. 

The  alleged  admissions  or  declarations  of  the  ticket  agent,  made  a 
da}'  or  more  after  the  occurrence  to  which  they  related,  were  incom- 
petent, and  the  objection  to  the  testimony  introduced  to  prove  such 
admissions  or  declarations  was  well  taken.  Moore  v.  Chicago,  &c., 
Railroad  Co.,  59  Miss.  243. 

It  is  competent  for  a  railroad  corporation  to  adopt  reasonable  rules 
for  the  conduct  of  its  business,  and  to  determine  and  fix,  within  the 
limits  specified  in  its  charter  and  existing  laws,  the  fare  to  be  paid  by 
passengers  transported  on  its  trains.  It  ma}',  in  the  exercise  of  this 
right,  make  discrimination  as  to  the  amount  of  fare  to  be  charged  for 
the  same  distance,  by  charging  a  higher  rate  when  the  fare  is  paid  on 
the  train  than  when  a  ticket  is  purchased  at  its  office.  Such  a  regula- 
tion has  been  very  generally  considered  reasonable  and  beneficial  both 
to  the  public  and  the  corporation,  if  carried  out  in  good  faith.  It 
imposes  no  hardship  or  injustice  upon  passengers,  who  may,  if  they 
desire  to  do  so,  pay  their  fare  and  procure  tickets  at  llie  lower  rate 
before  entering  the  cars,  and  it  tends  to  protect  the  corporation  from 
the  frauds,  mistakes,  and  inconvenience  incident  to  collecting  fare  and 
making  change  on  trains  while  in  motion,  and  Ironi  ini[)()sition  by  those 
who  may  attempt  to  ride  from  one  station  to  another  without  payment, 
and  to  enable  conductors  to  attend  to  the  various  details  of  their  duties 
on  the   train   and  at  stations.     State  v.  Goold,   53  Maine,  279  ;  The 


462  FORSEE   V.   ALABAMA   GREAT   SOUTHERN   RAILROAD. 

Jeffersonville  Railroad  Co.  v.  Rogers,  28  Ind.  1  ;  Swan  v.  Manchester, 
&c.  Railroad  Co.,  132  Mass.  116. 

But  such  a  regulation  is  invalid,  and  cannot  be  sustaint'd,  unless  the 
corporation  affords  reasonable  opportunity  and  facilities  to  passengers 
to  procure  tickets  at  the  lower  rate,  and  therebj'  avoid  tlie  disadvantage 
of  such  discrimination.  When  this  is  done,  and  a  passenger  fails  to 
obtain  a  ticket,  it  is  liis  own  fault,  and  he  may  be  ejected  from  tlie 
train  if  he  refuses  to  pay  the  higher  rate  charged  on  the  train. 

When  such  a  regulation  is  established,  and  a  passenger  endeavors  to 
buy  a  ticket  before  he  enters  the  cars,  and  is  unable  to  do  so  on  account 
of  the  fault  of  the  corporation  or  its  agents  or  servants,  and  he  offers 
to  pay  the  ticket  rate  on  the  train,  and  refuses  to  pay  the  car  rate,  it  is 
unlawful  for  the  corporation  or  its  agents  or  servants  to  eject  him  from 
the  train.  He  is  entitled  to  travel  at  the  lower  rate,  and  the  corpora- 
tion is  a  trespasser  and  liable  for  the  consequences  if  he  is  ejected  from 
the  train  by  its  agents  or  servants.  The  passenger  may,  under  such 
circumstances,  either  paj'  the  excess  demanded  under  protest,  and 
afterwards  recover  it  by  suit,  or  refuse  to  pa\'  it,  and  hold  the  corpora- 
tion responsible  in  damages  if  he  is  ejected  from  the  train.  1  Redfield 
on  Railways,  104;  Evans  v.  M.  &  C.  Railroad  Co.,  56  Ala.  246  ;  .St. 
Louis,  &c.  Railroad  Co.  v.  Dalb}-,  19  111.  353  ;  St.  Louis,  &c.  Railroad 
Co.  I-.  South,  43  III.  176  ;  Smith  v.  Pittsburg,  &c.  Railroad  Co.,  23  Ohio 
St.  10  ;  Porter  v.  N.  Y.  Central  Railroad  Co.,  34  Barb.  353  ;  The  Jef- 
fersonville Railroad  Co.  v.  Rogers,  28  Ind.  1  ;  The  Jefferson  Railroad 
Co.  V.  Rogers,  38  Ind.  116;  State  r.  Goold,  53  Maine,  279;  Swan  i\ 
Manchester,  &c.  Railroad  Co.,  132  Mass.  116  ;  Du  Laurans  v.  St.  Paul, 
&c.  Railroad  Co.,  19  Minn.  49. 

In  such  case  exemplary  damages  would  not  be  recoverable,  unless 
the  expulsion  or  attempted  expulsion  was  characterized  b}'  malice, 
recklessness,  rudeness,  or  wilful  wrong  on  the  part  of  the  agents  or 
servants  of  the  corporation.  Chicago,  &c.  Railroad  Co.  v.  Scurr,  59 
Miss.  456  ;  Du  Laurans  v.  St.  Paul,  &c.  Railroad  Co.,  19  Minn.  49  ; 
Pullman,  &c.  v.  Reed,  75  III.  125;  Hamilton  v.  Third  Avenue  Railroad 
Co.,  53  N.  Y.  25  ;  Townsend  v.  N.  Y.  Central  Railroad  Co.,  56  N.  Y. 
295  ;  Paine  v.  C.  R.  I.  &  P.  Railroad  Co.,  45  Iowa,  569  ;  McKinley  v. 
The  C.  &  N.  W.  Railroad  Co.,  44  Iowa,  314. 

The  cause  was  tried  in  the  court  below  on  theories  and  principles  of 
law  different  from  those  here  expressed,  and  the  judgment  is  reversed 
and  a  new  trial  awarded. 

Heversed.^ 

^  Compart :  Central  Co.  t\  Strickland,  90  Ga.  562  ;  111.  Co.  v.  Johnson,  67  111.  312  ; 
Sajre  V.  Evansville  Co.,  134  Ind.  100 :  Haiifhauer  v.  R.  R.,  .'J2  la.  342 ;  Pacific  R.  R.  r. 
Wolf,  54  Kans.  592;  Mesey  v.  R.  R.,  8-3  Ky.  511  :  McGowen  v.  S.  S.  Co.,  41  La.  Ann. 
732;  State  t\  Gould,  .53  Me.  279 ;  Zagelmeyer  v.  R.  R.,  102  Mich.  214  ;  Du  Laurans  v. 
11.  R.,  15  Minn.  102;  Ililliard  v.  Gould,  34'n.  H.  230;  Porter  v.  R.  R.,  34  Barb.  353; 
Fordyce  v.  Manuel,  82  Tex.  527.  —  Ec. 


WESTERN   UNION   TELEGRAPH   CO.   V.   MCGUIRE.  463 


WESTERN  UNION  TELEGRAPH    CO.   v.  McGUIRE. 

Supreme  Cocrt  of  Indiana,  1885. 

[104  fnd.  130.] 

Elliott,  J.  The  complaint  seeks  a  recover}'  of  the  statutory 
penalty  for  a  failure  to  transmit  a  telegraphic  message.  Tlie  answer 
of  the  appellant  is  substantially  as  follows :  "  The  defendant  sa\-s  that 
it  did  fail  and  refuse  to  transmit  the  message  set  forth  in  the  complaint, 
but  defendant  says  that  the  plaintiff  was  a  stranger  in  Frankfort  and  a 
transient  person  therein  ;  that  the  said  message  was  one  that  required 
an  answer;  that  the  defendant  has,  and  had  at  the  time,  as  one  of  its 
general  rules  and  regulations  of  business,  regularly  adopted  for  the 
government  of  the  operators  and  agents  of  said  compan}',  the  follow- 
ing rule  :  '  Transient  persons  sending  messages  which  require  answers 
must  deposit  an  amount  sufficient  to  pay  for  ten  words.  In  such  case 
the  signal,  "33"  will  be  sent  with  the  message,  signifying  that  the 
answer  is  prepaid  ;  '  that  the  defendant's  agent  to  whom  said  message 
was  offered,  informed  the  plaintiff  of  the  existence  of  said  rule  and 
what  said  rule  was,  and  that  the  amount  required  to  be  deposited  was 
twenty-five  cents  ;  that  thereupon  the  plaintiff  refused  to  comply  with 
said  rule  and  make  said  deposit." 

To  this  answer  a  demurrer  was  sustained,  and  on  this  ruling  arises 
the  controlling  question  in  the  case. 

One  of  the  incidental  and  inherent  powers  of  all  corporations  is  the 
right  to  make  by-laws  for  the  regulation  of  their  business.  There  is 
no  conceivable  reason  why  telegraph  corporations  should  not  possess 
this  general  power ;  nor  is  there  any  doubt  under  the  authorities  that 
this  power  resides  in  them.  Western  Union  Tel.  Co.  v.  Jones.  95  Ind, 
228  (48  Am.  R.  713),  vide  opinion,  p.  231,  and  authorities  cited  ; 
Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429  (9  Am.  R.  744)  ; 
True  V.  International  Tel.  Co.,  60  Maine,  9  (11  Am.  R.  156)  ;  Scott 
&  J.  Law  of  Telegraphs,  section  104. 

Affirming,  as  principle  and  authority  require  us  to  do,  that  the  tele- 
graph company  had  power  to  make  by-laws,  the  remaining  question  is 
whether  the  one  under  immediate  mention  is  a  reasonable  one.  It  is 
established  by  the  authorities  that  an  unreasonable  by-law  is  void. 
Western  Union  Tel.  Co.  v.  Jones,  supra;  Western  Union  Tel.  Co.  ?'. 
Buchanan,  supra;  Western  Union  Tel.  Co.  v.  Adams,  87  Ind.  598 
(44  Am.  R.  776)  ;  Western  Union  Tel.  Co.  v.  Blanchard,  68  Ga.  299 
(45  Am.  R.  480,  see  autliorities  note,  pages  491,  492). 

It  is  for  the  courts  to  determine  whether  a  by-law  is  or  is  not  an  un- 
reasonable one,  and  this  is  the  question  which  now  faces  us.  1  Dillon 
Munic.  Corp.  (3d  ed.),  section  327;  Scott  &  J.  Law  of  Telegraphs, 
section  104. 


464  OWENSBORO   GASLIGHT   CO.   V.    IIILDEBEAND. 

We  are  unable  to  perceive  anything  unreasonable  in  the  bv-law 
under  examination.  A  person  who  sends  another  a  message,  and  asks 
an  answer,  promises  b}'  fair  and  just  implication  to  pay  for  transmitting 
the  answer.  It  is  fairly  inferable  that  the  sender  who  asks  an  answer 
to  his  message  will  not  impose  upon  the  person  from  whom  he  requests 
the  answer  the  burden  of  pacing  the  expense  of  its  transmission.  The 
telegraph  company  has  a  right  to  proceed  upon  this  natural  inference 
and  to  take  reasonable  measures  for  securing  legal  compensation  for 
its  services.  It  is  not  unnatural,  unreasonal)le,  or  oppressive  for  the 
telegraph  compan}'  to  take  fair  measures  to  secure  payment  for  ser- 
vices rendered,  and  in  requiring  a  transient  person  to  deposit  the 
amount  legall}'  chargeable  for  an  ordinary  message,  it  does  no  more 
than  take  reasonable  measures  for  securing  compensation  for  transmit- 
ting the  asked  and  expected  message. 

AVe  have  found  no  case  exactly  in  point,  but  we  have  found  many 
analogous  cases  which,  in  principle,  sustain  the  bj'-law  before  us. 
Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525  ;  Camp  v.  Western 
Union  Tel.  Co.,  1  Met.  Ky.  164;  Vedder  v.  Fellows,  20  N.  Y.  126; 
Ellis  V.  Am.  Tel.  Co.,  13  Allen,  226  ;  McAndrew  v.  Electric  Tel.  Co., 
33  Eng.  L.  &  Eq.  180  ^  Western  Union  Tel.  Co.  v.  Blanchard,  supra^ 
see  authorities  cited  note,  45  Am.  R.,  page  489  ;  Western  Union  Tel. 
Co.  V.  Jones,  supra. 

Judgment  reversed,  with  instructions  to  overrule  the  demurrer  to  the 
answer  and  to  proceed  in  accordance  with  this  opinion. 


OWENSBOEO   GASLIGHT   CO.   v.   HILDEBRAND. 
Court  of  Appeals  of  Kentucky,   1897. 

[42  5.  W.  Rep.  351.] 

Hazelrigg,  J.  The  Owensboro  Gaslight  Company  and  the  Owens- 
boro  Electric  Company  are  not  given,  in  express  terms,  exclusive  right 
to  manufacture  and  furnish  gas  in  the  city  of  Owensboro,  but  the  com- 
panies are  given  the  use  of  the  streets  and  public  ways  of  the  city  for 
the  purpose  of  laying  the  mains  and  pipes  and  other  appliances  in  the 
maintenance  of  its  work.  The  companies  ma}*  also  acquire  the  use  of 
lands  for  their  business  In*  writs  ad  quod  damnum.  Their  business, 
therefore,  is  affected  with  public  interest,  and  tiiey  are  quasi-public 
corporations,  and  practically  they  have  a  monopoly  of  the  business  of 
manufacturing  and  furnishing  gas  within  the  corporate  limits  of  the 
city.  It  is  therefore  their  duty  to  furnish  the  city's  inhabitants  with 
gas,  and  to  do  so  upon  terms  and  conditions  common  to  all,  and  with- 
out discrimination.  They  cannot  fix  a  variety  of  prices,  or  impose  dif- 
ferent terms  and  conditions,  according  to  their  caprice  or  whim.     They 


STATE    EX    REL.    WEISE    V.    THE    SEDALIA    GAS    LIGHT   CO.       465 

ma}',  however,  fix  reasonable  rules  and  regulations  applicable  to  all 
the  consumers  alike.  In  these  cases  the  companies  undertook  to  com- 
pel the  appellee  to  deposit  the  sum  of  twenty  dollars  as  security  for  his 
future  consumption  of  gas  and  electricity,  and  upon  his  refusal  to  do 
so,  withdrew  their  pipes  and  wires  from  his  building.  This  suit  by 
nppellee  was  to  compel  them  to  furnish  him  light,  and  the  court,  on 
final  hearing,  granted  the  relief  sought.  It  is  conceded  by  appellee 
that  appellant  ma}'  prescribe  reasonable  rules  and  regulations,  and  im- 
|)ose  reasonable  conditions  upon  the  consumer,  and  require  proper 
security  for  tlie  payment  of  their  bills,  and  ma}'  even  require  deposits 
in  advance  ;  but  his  contention  here  is  that  the  companies  liave  adopted 
no  such  rule  or  regulations  as  they  have  attempted  to  enforce  against 
him,  and  such  appears  to  us  to  be  a  fact.  No  rule  or  regulation  of  a 
general  character  is  I'elied  on  or  exhibited  by  the  companies,  and  to 
allow  them  to  select  this  or  that  consumer  against  whom  to  enforce 
special  rules  would  put  the  consumer  at  the  capricious  humor  of  the 
agents  and  employees  of  the  companies. 

The  judgment  below  is  affirmed. 


STATE  EX  REL.    WEISE  v.  THE  SEDALIA  GAS   LIGHT  CO. 

Court  of  Appeals,  Missouri,  1889. 

[34  Mo.  App.  501.1] 

Statement  of  the  case  by  tlie  court. 

The  petition  avers,  and  the  alternative  writ  recites,  that  the  appellant 
was  organized  under  the  general  laws  of  the  State  of  Missouri  for  the 
purpose  of  supplying  the  city  of  Sedalia  and  its  inhabitants  with  illu- 
minating gas ;  that  by  section  14  of  said  article  7  (Wag.  Stat.)  said 
company  might  lay  its  pipes,  &c.,  through  the  streets  of  said  city,  by 
consent  of  the  municipal  authorities  thereof,  under  such  reasonable 
regulations  as  said  authorities  might  prescribe ;  that  on  the  seven- 
teenth day  of  June,  1868,  an  ordinance  was  passed  by  the  municipal 
authorities  of  said  city  granting  to  said  company  the  exclusive  right  to 
lay  its  pipes  through  said  city,  and  to  supply  it  and  its  inhabitants 
with  gas,  for  a  period  of  thirty  3'ears,  upon  the  sole  condition,  how- 
ever, that  said  company  should  furnish  the  citj'  and  its  inhabitants  "  a 
sood  article  of  illuminating  gas,  at  a  price  per  cubic  foot,  not  exceeding 
the  rate  charged  in  similarlv  situated  places ;  "  that  said  company 
accepted  the  terms  of  said  ordinance  ;  that  the  relator  complied  with 
all  the  reasonable  rules  and  regulations  of  said  gas  company,  which  are 
fully  set  forth  in  the  petition  and  alternative  writ ;  that  notwithstand- 
ing all  this,  and  relator's  offer  and  tender  of  full  pay  for  all  gas  con- 

1  This  case  is  aliridged.  —  Ed. 
30 


46G        STATE    EX    REL.    WEISE    V.    THE    SEDALIA    GAS   LIGHT    CO. 

sumed,  the  gas  company  removed  the  meter  from  his  place  of  business 
and  refused  to  furnish  him  gas,  &c. 

All  this  is  admitted  in  respondent's  return  to  the  alternative  writ, 
and  the  sole  justification  pleaded,  for  its  refusal  to  furnish  gas  to 
relator,  is  that,  in  addition  to  the  rules  and  regulations  set  out  in  the 
petition  and  alternative  writ,  said  gas  company  had  adopted  another  to 
the  effect  that,  ''  all  persons  using  or  desiring  to  use  gas  manufactured 
by  the  defendant  within  said  city,  should  pay  a  monthly  rental  upon, 
and  for  the  use  of,  the  meter  furnished  b\'  the  defendant  of  the  sum  of 
one  dollar  and  twenty-five  cents  per  month,  in  all  cases  where  such 
consumer  consumes  less  than  five  hundred  feet  of  gas,  and  which  rental 
was  to  be  taken  in  full  of  such  gas,  not  exceeding  the  amount  of  five 
hundred  feet  in  any  one  month."  Thereupon  relator  moved  to  strike 
out  that  part  of  the  return  for  the  following  reasons  : 

I.  The  rule,  regulation  or  bj'-law,  in  said  portion  of  said  return  set 
up  and  pleaded  as  a  reason  why  a  peremptory  mandamus  should  not 
issue  against  defendant  herein,  is  not  a  fair,  impartial  nor  reasonable 
rule  or  by-law  ;  it  is  oppressive  and  discriminator^^  and  contrary  to 
public  policy  ;  it  is  beyond  the  power  of  the  defendant  to  make  and 
seeks  to  enlarge  the  powers  of  defendant,  granted  it  bj-  the  laws  of  the 
State  ;  it  is  in  conflict  with  the  ordinance  of  the  city  of  Sedalia,  as  set 
forth  in  the  alternative  writ,  under  which  it  supplies  the  city  of  Sedalia 
and  its  inhabitants  with  illuminating  gas. 

II.  Said  portion  of  said  return  states  no  facts  which  in  law  constitute 
good  cause  wh}"  the  defendant  should  not  obey  the  mandate  of  the 
alternative  writ  issued  herein. 

This  motion  was  sustained.  The  respondent  refused  to  plead  further, 
and  the  return,  after  this  portion  being  stricken  out,  being  in  effect  a 
concession  of  the  recitations  of  the  alternative  writ,  a  peremptory  writ 
was  ordered. 

The  sole  ground  of  error  is  the  action  of  the  court  in  striking  out 
said  portion  of  respondent's  return. 

Gill,  J.  I.  It  is  a  well-understood  principle  that  corpoiations,  so 
engaged  as  the  appellant  gas  company,  may,  in  its  dealings  with  the 
people,  adopt  and  enforce  such  reasonable  and  just  rules  and  regula- 
tions as  may  be  necessary  to  protect  its  interests  and  further  the  de- 
signs of  its  incorporation.  They  have  such  power,  too,  without  an 
express  grant  to  that  effect.  It  is  an  inlierent  power  implied  fiorn  the 
nature  of  the  business  in  which  they  are  engaged,  limited  only  by 
express  statute,  or  ordinance,  or  by  a  sense  of  what  is  right,  reasonable, 
and  just.  Shepard  v.  Gas  Co.,  6  Wis.  539  ;  Wendall  v.  State,  62 
Wis.  300. 

The  relator  in  this  action  contends,  however,  that  the  rule,  or  regu- 
lation, of  the  Sedalia  Gas  Company  prescribing  payment  by  the  con- 
sumer of  $1.25  per  month,  where  the  amount  of  gas  used  is  less  per 
month  than  five  hundred  cubic  feet  —  the  designated  $1.25  per  month 
being  denominated  rent  of  meter  —  is  "  unjust,  unreasonable,  and  dis- 


STATE   EX   REL.    WEISE   V.   THE   SEDALIA   GAS   LIGHT   CO.       467 

criminatory."  What  is  just  and  reasonable  is  to  be  determined  by  the 
nature  of  the  employment  pursued  bj-  the  corporation  and  the  uses  and 
conveniences  of  the  public.  There  must  be  a  reasonable  protection  of 
the  interests  of  the  one,  consistent  with  the  reciprocal  rights  of  the 
other. 

Irrespective,  now,  of  any  ordinance  provision,  can  it  be  said  that  this 
charge  of  $1.25  per  month  on  a  consumer  of  less  than  five  hundred 
cubic  feet  of  gas  is  unreasonable?  We  think  it  is  not  unjust  or  un- 
reasonable. The  evident  purpose  of  this  rule  was  to  exact  fair  com- 
pensation from  those  requiring  gas  connection,  and  gas  furnished  at 
hand,  though  the  amount  consumed  should  be  very  small,  almost 
nominal. 

It  is  a  matter  of  common  knowledge,  that  to  furnish  the  gas  at  hand 
for  the  very  small  or  nominal  consumer  requires  the  same  out-lay,  in 
the  way  of  a  meter,  periodical  inspection  and  repairs,  with  weekly  or 
montlily  visitations,  that  is  required  of  very  large  consumers.  The 
same  investment  and  the  same  care  and  ov-ersight  is  required  where  the 
gas  raonthl}-  consumed  shall  not  exceed  ten  cubic  feet  or  even  one  cubic 
foot,  as  where  the  amount  used  may  be  ten  thousand  cubic  feet.  At  the 
rate  charged  then  in  Sedalia,  as  alleged  in  relator's  complaint,  the  gas 
company  would  be  required  to  invest  and  expend,  for  the  benefit  of 
this  merely  nominal  consumer,  more  dollars  than  cents  received.  The 
rate  there  charged,  as  alleged,  is  $2.50  per  thousand  cubic  feet.  For 
this  ten  cubic  feet  thus  consumed,  and  for  which  the  company  could 
receive  pay  of  only  two  and  a  half  cents,  the  cost  to  the  gas  company 
may  be  manv  dollars. 

II.  Relator's  further  contention  is  that  the  gas  corapan}'  has  no 
authorit}-,  under  the  ordinance  of  the  city,  under  which  it  operates,  to 
adopt  or  enforce  the  rule  in  question. 

Much  courage  for  tliis  contention  is  apparentlv  drawn  from  the  terms 
of  the  grant  of  franchise,  by  tlie  city,  wherein  it  is  provided  that  the 
grant  sliould  be  "upon  condition  that  it  (the  gas  company)  should 
furnish  the  public  lamps  of  the  cit}',  and  to  the  inhabitants  of  the  city 
.  .  .  gas  at  a  price,  per  cubic  foot,  not  exceeding  the  rate  charged  in 
similarly  situated  places  ;  that  said  gas  company  should  have  the  right 
to  collect  pay  for  gas  furnished  from  the  consumers  of  tlie  same,"  &c. 

It  is  insisted  that  this  is  not  collecting  for  "  gas  consumed,"  but  is 
charging  rental  on  the  meter  used  in  measuring  the  gas,  and  that  the 
company  is  only  allowed  to  charge  for  gas  per  cubic  foot. 

Tlie  construction  insisted  on  is  too  narrow.  While  the  rule  names 
the  charge  for  gas  in  this  instance  as  "rent"  of  meter,  yet  by  its 
express  terms  the  $1.25  is  pa}-  for  all  gas  consumed  by  the  customer, 
to  the  extent  of  five  hundred  cubic  feet.  And  again  the  clause  limiting 
the  maximum  price  at  wliich  the  company  should  sell  its  gas  to  the  city 
for  street  lamps  and  to  its  citizens  was  only  intended  to  require  of  the 
company  to  furnish  gas  to  Sedalia,  and  to  its  inhal)itauts,  at  prices  not 
exceeding  those  prevailing  in  other  "  places  similarly  situated."     It 


46S  WATAUGA    WATEK    CO.    V.    WOLFE. 

was  not  meant  to  prohibit  the  gas  company  from  selling  gas  b}-  any 
other  means  than  per  cubic  foot.  If  the  compan}'  shall  furnish  gas  to 
the  city,  and  to  its  inhabitants,  at  prices  not  in  excess  of  those  charged 
in  "places  similarly  situated,"  than  the  spirit  of  this  ordinance  pro- 
vision is  fully  met ;  and  if  the  gas  company  by  this  rule  is  charging 
more  than  is  imposed  in  "  places  similarly  situated,"  then  the  pro- 
visions of  the  ordinance  in  question  are  being  violated,  and  the  corn- 
pan}"  will  not  be  protected  in  so  doing.  We  think  this  is  a  fair 
construction  to  be  given  the  clause  in  question.  To  hold  otherwise 
would  impose  upon  the  gas  company  the  necessity  to  affix  a  meter  on 
ever}'  lamp  post  in  the  city,  and  measure  off  each  cubic  foot  furnished 
the  city;  for  the  same  stipulation  implies  to  gas  furnished  the  street 
lamps  as  is  furnished  private  consumers. 

We  hold  then  that  the  rule  or  regulation  in  question,  and  as  is  stated 
in  the  return  to  the  writ,  is  not,  as  a  matter  of  law,  unreasonable,  and 
does  not  conflict  with  the  terms  of  the  franchise  ordinance  referred  to, 
and,  admitting  the  truth  of  that  portion  of  the  return  as  pleaded,  the 
trial  court,  in  our  opinion,  committed  error  in  striking  out  the  same,  as 
it  was  proper  matter  of  defence  to  the  action. 

Judgment  reversed  and  cause  remanded. 

The  other  judges  concur. 


WATAUGA   WATER   CO.   v.   WOLFE. 

Supreme  Court  of  Tennessee,   1897. 

[99  Tenn.  429.] 

Caldwell,  J.  C.  H.  Wolfe  brought  this  suit  against  the  Watauga 
Water  Company  and  obtained  judgment  before  the  circuit  judge,  sitting 
without  a  jury,  for  ten  dollars,  as  damages  for  its  refusal  to  furnish 
him  water  at  his  residence  in  Johnson  City.  The  company  appealed 
in  error. 

The  defendant  is  a  water  company,  chartered  under  the  general  laws 
of  the  State  (Code,  annotated  by  Shannon,  §§  2499-250G),  with  the 
right  of  eminent  domain  and  all  essential  powers,  privileges,  and  fran- 
chises, and  operating  its  wnterworks  at  Johnson  City  under  special 
contract  with  that  city  to  furnish  it  and  its  inhabitants  with  water  at 
designated  rates.  Being  thus  endowed  by  the  State,  and  under  con- 
tract with  one  of  the  State's  munici[)alities,  the  company  is  essentially 
a  public  corporation,  in  contradistinction  from  a  private  corporation. 
It  is  engaged  in  a  public  business,  under  a  public  grant  and  contract, 
and  is,  tlierefore,  charged  with  public  duties,  and  cannot,  at  its  election 
and  without  good  reason,  serve  one  member  of  the  community  and  not 
another.  It  is  bound  to  furnish  the  commodity,  whicli  it  was  created 
to  supply,  to  the  city  and  all  of  its  inhal»itants  upon  the  terms  desig- 


WATAUGA   WATER   CO.    V.   WOLFE.  469 

nated  in  its  contract  (the  same  being  fair  and  reasonable),  and  without 
discrimination.  Crumlej-  r.  Watauga  Water  Co.,  98  Tenn.  420; 
Hangen  v.  Albina  Light  &  Water  Co.  (Ore.),  U  L.  R.  A.  424; 
American  Waterworks  Co.  v.  State  (Neb.),  30  L.  R.  A.  447;  State 
V.  Butte  Cit}-  Water  Co.  (Mont.),  32  L.  R.  A.  697  ;  Union  Tel.  Co.  v. 
State,  118  Ind.  206;  Lombard  v.  Stearns,  4  Cush.  GO;  Lowell  i\ 
Boston,  111  Mass.  464  ;  WilHams  v.  Mut.  Gas  Co.,  52  Mich.  499  ;  50 
Am.  Rep.  266;  Ohnsted  ik  Morris  Aqueduct  Proprs.,  47  N.  J.  Law, 
333;  Shepard  v.  Milwaukee  Gas  Co.,  6  Wis.  539;  70  Am.  Dec.  479; 
Spring  Valley  Waterworks  c.  Schottler,  110  U.  S.  347;  New  Orleans 
Gas  Co.  V.  Louisiana  Light  Co.,  115  U.  S.  650;  Louisville  Gas  Co.  v. 
Citizens' Gas  Co.,  115  U.  S.  683;  2  Mor.  on  Pri.  Corp.,  Sec.  1129; 
2  Cook  on  S.  S.  &  C.  L.,  Sec.  932  ;  1  Dill,  on  Mun.  Corp.  (4th  ed.), 
Sec.  52,  and  note,  citing  Forster  v.  Fowler,  60  Pa.  St.  27  ;  29  Am.  & 
Eng.  Enc.  L.  19,  note :  15  L.  R.  A.  322. 

Though  impressed  with  a  public  use,  and  under  legal  obligation  to 
furnish  water  to  all  inhabitants  at  the  designated  rates,  and  without 
discrimination,  the  defendant  compan\'  is  allowed  to  adopt  reasonable 
rules  for  the  conduct  of  its  business  and  operation  of  its  plant,  and 
such  rules,  so  far  as  they  affect  its  patrons,  are  binding  upon  them,  and 
may  be  enforced  by  the  company,  even  to  the  extent  of  denying  water 
to  those  who  refuse  to  compl}'  with  them.  American  Waterworks  Co. 
V.  State  (Neb.),  30  L.  R.  A.  447. 

Wolfe  had  been  a  patron  of  the  company,  and  had  been  accustomed 
to  leave  his  hydrant  open,  so  that  large  quantities  of  the  escaping 
water  went  to  waste.  His  claim  was,  that  the  water  so  wasted  was 
stale  and  not  fit  for  his  use,  and  upon  that  ground  he  sought  to  justif}' 
his  action  ;  but  the  company  thought  the  water  not  stale  and  the  waste 
excessive.  Complaints  were  made  to  the  company  by  persons  upon 
whose  premises  the  escaping  water  flowed. 

W'olfe  ceased  to  take  water  from  the  company  for  awhile,  preferring 
to  use  his  well.  W^hen  he  applied  to  the  company  for  water  again, 
tendering  all  required  charges  in  advance  he  was  requested  to  sign  a 
regular  application,  and  agree,  in  conformity  to  a  rule  of  the  company, 
that  he  would  keep  his  hydrant  closed  except  when  using  the  water. 
This  he  declined  to  do,  and  the  company  refused  to  turn  water  into 
his  h^-drant.  He  said  he  "  wanted  pure,  good  water,"  and  that  he 
"would  keep  the  tube  open  so  long  as  it  was  necessary  to  keep  the 
water  fresh."  Three  days  after  the  company's  declination  this  suit  was 
brought  to  recover  damages.  Tlie  rule  in  question  was  reasonable, 
and  Wolfe's  refusal  to  comply  with  it  disentitled  him  to  receive  the 
water,  and  relieved  the  company  of  its  obligation  to  furnish  it.  This 
does  not  imply  that  a  patron  of  a  water  company  is  not  entitled  to 
"  pure,  good  water,"  but  onh-  means  that  he  may  not  set  himself  up 
as  the  sole  judge  of  its  quality,  and  execute  his  own  adverse  judgment 
in  his  own  way,  and  without  restraint,  in  defiance  of  the  company,  and 
to  its  inevitable  detriment.     It  has  been  held,  that  ''  a  rule  of  a  water 


470  HAEBISON    V.    KNUXVILLE    WATER   CO. 

companj',  giving  it  the  right  to  shut  off  water  from  the  premises  of  a 
consumer  who  wastes  it,  is  reasonal)le  "  (Sliiras  v.  Ewing,  48  Kan. 
170)  ;  and  that  holding  was  approved  in  the  case  of  American  Water- 
works Co.  V.  State,  30  L.  R.  A.  449. 

Jieversed,  and  enter  Judgment  dismissing  suit  with  costs. 


HARBISON  V.  KNOXVILLE   WATER   CO. 
Court  of  Chancery  Appeals  of  Tennessee,  1899. 

[53  S.  W.  Rep.  993.] 

This  bill  was  filed  February,  1899,  to  enjoin  the  defendant  from 
cutting  off  the  water  supply  for  domestic  purposes  from  the  premises 
occupied  b}'  complainant,  and  to  secure  a  mandatory  injunction  com- 
manding defendant  to  furnish  complainant  water  for  the  purpose  stated, 
without  requiring  him  to  compl}-  with  certain  of  its  rules  and  regula- 
tions, characterized  in  the  bill  as  oppressive  and  unreasonable.  The 
bill,  after  stating  the  location  of  the  premises  occupied  by  complain- 
ant, and  tliat  tiie  defendant  was  a  corporation  organized  under  the 
laws  of  this  State  for  the  purpose  of  supplying  water  to  the  city  of 
Ivnoxville  and  its  inhabitants,  avers  that,  having  been  given  the  rights 
to  lay  its  pipes,  &c.,  in  the  streets  and  alleys  of  the  city  of  Knoxville, 
it  is  a  public  corporation,  and  engaged  in  a  public  business.  The  bill 
further  avers  that  complainant,  soon  after  he  occupied  the  premises 
described,  commenced  taking  water  from  the  defendant  for  domestic 
purposes,  and  continued  to  get  water  from  it  until  May,  1899,  paying 
in  advance  therefor,  under  tlie  rules  of  the  company  ;  that  the  liydrant 
or  pipe  from  which  complainant  obtained  his  supply  of  water  was  located 
in  his  yard,  adjacent  to  his  house,  and  that  in  May,  1898,  he,  at  his 
own  expense,  had  a  faucet  put  upon  his  hydrant,  and  began  to  use 
w-ater  for  sprinkling  his  yard  and  the  street  adjacent  thereto  ;  that  for 
water  thus  used  he  paid  the  additional  charges  exacted  by  the  com- 
pan}-,  and  continued  to  use  water  for  both  domestic  and  sprinkling 
purposes  until  January  1,  1899  ;  that  at  this  date  he  called  at  the  ofHce 
of  the  company  in  Knoxville,  and  informed  its  officers  that  he  did  not 
desire  to  take  water  for  sprinkling  purposes,  but  did  desire  to  take 
water  for  domestic  purposes,  and  offered  then  to  pay  its  charges  for 
water  to  be  thus  used  ;  that  his  reason  for  not  wishing  the  water  for 
sprinkling  purposes  was  that  during  the  winter  and  spring  seasons  na- 
ture's rains  furnished  the  water  free  of  charge,  and  he  had  no  need  of 
an  artificial  supply  for  sprinkling  purposes.  .  .  .  The  bill  further  states 
that  the  defendant,  February  1,  1899,  cut  off  his  domestic  supply-  of 
water  altogether  from  his  premises,  because  he  would  not  pay  its  un- 
just charges  in  advance.     It  is  alleged  that  complainant's  sole  reliance 


HARBISON    V.    KNOXVILLE    WATER   CO.  471 

for  water  is  upon  the  defendant,  and  that,  if  it  is  allowed  to  cut  off  the 
supply,  he  will  be  put  to  great  cost,  expense,  and  annoyance  in  provid- 
ing himself  with  the  water  necessary  for  cooking,  washing,  and  other 
domestic  purposes.  It  is  said  in  the  bill  that  complainant  is  now  com- 
pelled, in  order  to  supply  himself  with  water  for  domestic  purposes,  to 
get  the  same  from  his  neighbor's  cistern,  across  the  street  from  him. 
The  charges  of  the  defendant  for  water  for  domestic  purposes  are 
tendered  with  the  bill.  The  complainant,  however,  denies  the  right  of 
the  defendant  to  cut  off  his  water  supplv  because  its  charges  therefor 
were  not  paid  in  advance.  He  also  denies  the  right  of  the  defendant 
company  to  exact  from  its  patrons,  as  a  condition  precedent  to  furnish- 
ing them  with  water,  its  price  or  charges  for  said  water  for  three  months 
in  advance,  or  for  an}'  other  period  in  advance.  The  rules  and  regula- 
tions of  the  compan}'  in  this  regard  are  assailed  as  unjust,  oppressive, 
and  unreasonable.  The  prayer  of  the  bill  is  for  an  injunction  compel- 
ling defendant  to  abstain  from  cutting  off  the  water  suppl}-  of  complain- 
ant for  domestic  purposes,  and  for  a  mandatorv  injunction  compelling 
defendant  to  furnish  complainant  water.  A  decree  is  also  asked  estab- 
lishing and  declaring  complainant's  rights  in  the  premises,  under  the 
facts,  and  especially  for  a  decree  compelling  the  defendant  to  furnish 
complainant  water  for  domestic  purposes  without  requiring  him  to  in- 
jure, remove,  or  destroy  the  pipe  or  faucet  placed  b}-  him  upon  his 
hydrant,  and  without  requiring  him  to  take  and  pa}'  for  the  water  for 
the  entire  season  as  fixed  by  defendant,  and  without  requiring  him  to 
pay  in  advance  therefor.  The  rules  of  the  company  exacting  these 
requirements  are  asked  to  be  set  aside,  as  unreasonable  and  oppressive, 
and  as  beyond  the  power  of  defendant  to  establish.  An  injunction 
issued  under  the  prayer  of  this  bill. 

The  defendant  water  compan}'  answered  the  bill  in  full. 

Chancellor  Kyle  heard  the  case  upon  the  whole  record  August  3,  1899. 
He  held  that  the  complainant  was  not  entitled  to  the  relief  sought  in 
his  bill,  nor  to  an}'  relief,  and  thereupon  dismissed  the  bill,  with  costs. 
The  defendant  thereupon  moved  the  court  for  a  reference  to  tlie  master 
to  ascertain  and  report  the  damages  due  the  defendant,  sustained  by 
reason  of  the  injunction  sued  out.  The  court,  however,  was  of  opinion 
that  this  reference  should  not  be  executed  until  after  the  hearing  of 
the  appeal  prayed  by  the  complainant.  The  complainant  prayed  and 
was  granted  an  appeal  to  the  Supreme  Court,  and  has  assigned  errors. 
The  erroi's  assigned  are  :  First.  Error  in  dismissing  the  bill  of  com- 
plainant and  in  denying  him  relief  Second.  Error  in  the  chancellor  in 
refusing  to  decree  that  the  defendant  could  not,  as  a  condition  prece- 
dent to  furnishing  the  complainant  water  for  domestic  purposes  only,  re- 
quire him  to  remove  or  cut  off  the  threads  from  the  nozzle  of  his 
hydrant.  Thir<l.  Error  in  not  holding  that  the  defendant  had  no  right, 
as  a  condition  precedent  to  furnishing  water  for  domestic  purposes,  to 
require  him  to  pay  for  water  for  both  domestic  and  sprinkling  purposes 
in  advance.     Fourth.  Error  in   not  holding  that  the  defendant  had  no 


472  HARBISON    V.    KNOXVILLE    WATER   CO. 

right,  as  a  condition  precedent  to  furnishing  complainant  water  for 
sprinkling  purposes,  to  require  him  to  take  and  to  pay  for  the  same  for 
an  entire  season,  extending  from  April  to  November  of  each  season. 
Fifth.  Error  in  not  holding  that  defendant's  rules,  under  and  by  virtue 
of  which  it  assumed  the  right  to  do  the  things  above  complained  of, 
were -unjust,  oppressive,  harsh,  unreasonable,  and  illegal,^ 

Wilson,  J.  The  law  is  well  settled  that  water  companies  organizel 
and  invested  with  the  powers  given  the  defendant  company,  and  obli- 
gated to  furnish  cities  and  their  inhabitants  with  water,  are  in  the  na- 
ture of  public  corporations,  engaged  in  a  public  business,  and  are 
charged  with  the  public  duty  of  furnishing  to  the  cities  and  their  in- 
habitants water,  alike,  and  without  discrimination  and  without  denial, 
except  for  ground,  and  upon  sufficient  cause.  It  is  equally  well  set- 
tled that  such  companies,  while  thus  charged  and  obligated,  ma}' 
adopt  reasonable  rules  for  the  conduct  of  their  business  and  the  op- 
eration of  their  plants,  and  such  rules  are  binding  on  their  patrons, 
and  ma}-  be  enforced,  even  to  the  extent  of  denying  water  to  those  who 
refuse  to  comply  with  them.  In  support  of  these  propositions,  we 
need  only  refer  to  the  cases  of  Crumley  v.  Water  Co.,  99  Tenn.  420,  41 
S.  W.  1058  et  seq.,  and  Water  Co.  v.  Wolfe,  99  Tenn.  429,  41  S.  W. 
1060  et  seq.  and  the  opinions  therein  prepared  by  Mr.  Justice  Cald- 
well, where  numerous  authorities  are  referred  to  and  commented  on. 
In  these  cases  the  rule  is  announced  that  a  water  company  cannot  re- 
fuse to  furnish  water,  upon  the  tender  of  its  charges  therefor,  on  the 
ground  that  the  applicant  is  indebted  to  it  for  a  previous  supply  of 
water,  which  he  refuses  or  is  unable  to  pay  for.  It  is  further  announced 
in  the  latter  of  the  cases  that  a  regulation  of  the  company'  requiring 
patrons  to  keep  their  hydrants  closed,  except  when  nsing  the  water, 
is  reasonable,  and  that  a  refusal  to  compl}'  with  this  rule  of  the  com- 
pany justifies  it  in  refusing  to  supply  water  to  the  party  so  refusing, 
although  under  legal  obligation  to  do  so  upon  his  compliance  with  its 
reasonable  regulations.  The  question,  therefore,  in  everj-  case  of  this 
character,  is  the  reasonableness  or  unreasonableness  of  the  rule  assailed 
by  the  citizen  asking  for  a  supply  of  water,  and  invoked  b}-  the  com- 
pany in  justification  of  its  refusal  to  furnish  it.  The  rules  of  the  corn- 
pan}'  assailed  in  this  case  are,  in  brief:  (1)  That  the  citizens  shall  pay 
in  advance  for  a  quarter  of  a  year  for  a  supply  of  water  for  domestic 
purposes;  (2)  that,  if  the  citizen  take  water  for  sprinkling  purposes, 
he  must  do  so  for  the  season  in  each  year  fixed  by  the  company  (that 
is,  from  April  1st  to  November  1st),  and  pay  for  the  same  in  advance  ; 
(3)  that  the  company  will  not  furnish  water  for  domestic  purposes, 
although  its  charges  therefor  for  the  quarter  are  tendered  in  advance, 
unless  the  applicant  also  takes  water  for  sprinkling  purposes,  if  the 
application  come  in  the  sprinkling  season  fixed  by  it,  or  unless  the  ap- 
plicant removes  the  appliances  of  his  hydrant,  or  puts  it  in  such  con- 

^  This  statement  of  facts  is  taken  from  the  statement  of  Wilson,  J.  —  Ed. 


HARBISON   V.    KNOXVILLE   WATER   CO.  473 

dition  that  he  cannot  use  it  to  get  water  for  sprinkling  purposes.  In 
Tacoma  Hotel  Co.  y.Tacoma  Liglit  &  Water  Co.,  3  Wash.  797,  28  Pac. 
516,  14  L.  R.  A.  669,  a  rule  requiring  a  deposit  of  money  to  guarantee 
the  payment  of  the  price  of  gas  used,  and  authorizing  the  company  to 
discontinue  furnishing  gas  unless  the  rule  was  complied  with,  was  held 
to  be  reasonable.  In  Shiras  u.  Ewing,  48  Kan.  170,  29  Pac.  320,  a 
rule  of  the  water  company  to  shut  off  the  supply  of  a  patron  who  wastes 
it  was  upheld  as  reasonable.  In  People  v.  Manhattan  Gaslight  Co.,  45 
Barb.  136,  the  rule  of  the  gas  company  giving  it  the  right  to  refuse  to 
furnish  a  customer  with  gas  until  he  paid  his  past-due  gas  bills  was 
held  not  unreasonable.  The  holding  of  the  case  last  cited,  we  take  it, 
is  in  conflict  with  the  rule  announced  in  Crumley  v.  Water  Co.,  supra. 
The  above  principle  announced  in  the  New  York  case  is  also  repudiated 
in  the  case  of  Gaslight  Co.  r.  Colliday,  25  Md.  1.  See,  also,  Lloyd  v. 
Gaslight  Co.,  1  Mackey,  331.  The  case  of  Shepard  v.  Gaslight  Co.,  6 
Wis.  539,  and  extended  note  thereto,  give  a  full  and  clear  statement  of 
the  law  applicable  to  the  duties  and  powers  of  gas  companies,  whose 
relations  to  the  public  are  closely  analogous  to  water  companies  char- 
tered to  supply  cities  and  their  inhabitants  with  water.  In  this  case  it 
was  held  that  the  gas  company  had  the  right  to  make  such  needful 
rules  and  regulations  for  its  own  convenience  and  securitj',  and  for  the 
safety  of  the  public,  as  are  just  and  reasonable,  and  to  exact  from 
the  consumer  of  its  product  a  promise  of  conformit}'  thereto.  Under 
this  general  principle,  it  was  held  that  the  company  had  the  right  to 
demand  security  for  the  gas  consumed,  or  a  deposit  of  money  to  secur3 
payment  therefor.  A  rule  of  the  company,  however,  requiring  the 
citizen  to  agree  to  free  access  to  his  house  and  premises  at  all  times 
by  the  inspector  of  the  company  for  the  purpose  of  examining  the  gas 
appliances,  and  to  remove  the  meter  and  service  pipe,  was  held  to  be 
too  general  in  its  scope,  and  therefore  unreasonable  and  beyond  the 
power  of  the  company  to  enforce.  A  rule  of  the  company  reserving 
to  it  the  right  at  any  time  to  cut  off  the  communication  of  the  service 
whenever  it  found  it  necessar}'  or  deemed  it  necessary-  to  do  so,  to  pro* 
tect  its  works  against  abuse  or  fraud,  was  also  held  to  be  unreason- 
able. In  this  connection  the  court  said  that  the  company  must  rely 
for  protection  against  fraud  upon  the  same  tribunals  that  the  law  pro- 
vides for  individuals.  It  was  further  adjudged  in  the  case  tliat  the 
company  had  no  power  to  impose  a  penalty  for  the  violation  of  one  of 
its  regulations,  and  that  it  had  no  right  to  make  submission  to  such 
penalty  a  condition  precedent  to  the  right  of  the  citizen  to  be  furnished 
with  gas.  See,  also,  the  following  additional  cases  for  further  illus- 
tration of  the  general  rule,  and  its  application  to  particulai'  instances  : 
American  Water  Works  Co.  v.  State,  46  Neb.  194,  64  N.  W.  711,  30 
L.  R.  A.  447;  Williams  v.  Gas  Co.,  52  Mich.  499,  18  N.  W.  236; 
State  V.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  ^\^  237  ;  City  of  Rush- 
ville  V.  Rushville  Nat.  Gas  Co.,  132  Ind.  575,  28  N.  E.  853,  15  L.  R. 
A.  321,  note,  and  cases  cited;   Water  Co.  v.  Adams,  84   Me.  472,  24 


474  HARBISON   V.    KNOXVILLE   WATER   CO. 

Atl.  810,  and  cases  cited.  In  the  case  last  referred  to  it  was  ruled 
that  a  regulation  of  the  water  company,  that  one  year's  rent  would  be 
required  in  all  cases,  payable  in  advance,  on  the  1st  day  of  July  each 
year,  was  unreasonable  and  could  not  be  enforced,  and  therefore  a 
year's  rent  could  not  be  collected  from  a  part}-  who  had  used  water 
only  for  a  few  months.  It  was  further  ruled  in  that  case  that  a  con- 
tract to  pay  for  water  according  to  the  regulations  of  the  company 
would  not  be  implied  from  a  knowledge  of  such  regulations,  if  the}' 
were  unreasonable. 

A  review  of  these  and  other  authorities  shows,  we  think,  that  the 
regulation  of  the  defendant  company  requiring  a  prepayment  of  a 
quarter's  rent  for  a  water  supply  for  domestic  purposes  is  reasonable. 
We  are  not  dealing  with  a  case  where  the  residence  of  the  consumer  is 
metered,  and  the  exact  quantit}'  used  b}'  him  can  be  measured.  In 
such  case  the  party  pays  for  the  water  actually  consumed  by  him,  at 
the  scale  of  prices  fixed  b}-  the  company,  assuming  its  charges  to  be 
reasonable.  In  the  case  at  bar  the  complainant  gets  his  water  from  a 
hydrant  in  his  3ard,  connected  with  the  service  pipe  of  the  compan}-, 
and  the  rule  of  the  compan}-  fixes  the  quarter  rent.  Paying  this  rent, 
he  is  limited  to  the  consumption  of  no  definite  quantity  of  water.  The 
only  limitation  upon  his  use  of  it,  so  far  as  we  gather  from  the  record, 
is  an  implied  one,  that  he  must  not  waste  it;  and,  if  he  does  waste 
it,  the  company,  under  the  authorities  cited,  can  cut  off  the  suppl}'. 
But,  in  a  controversy  over  this,  the  courts,  we  take  it,  are  the  tribunals 
to  ultimately  settle  it,  and  not  the  company.  The  rule  or  requirement 
of  the  com[)any  that  the  party  taking  and  paying  for  water  for  domes- 
tic purposes  only  must  put  his  hydrant  appliances  in  condition  for  such 
use  only,  and  not  have  it  in  a  condition  to  use  water  through  and  from 
them  for  sprinkling  purposes,  unless  he  pays  a  reasonable  rental  for 
the  use  for  the  latter  purpose,  is,  we  think,  reasonable,  and  one  that 
the  compan}'  can  enforce.  Such  a  regulation  for  the  sale  of  its  water 
furnished  through  hydrants,  where  the  quantity  used  cannot  be  or  is 
not  measured,  is  essential  to  protect  the  rights  and  safet}-  of  the  com- 
pany, and  may  be  necessary  to  enable  it  to  meet  its  obligations  to  the 
pulilic,  and  its  duty  to  furnish  water  to  all  inhabitants  of  the  city  alike 
and  without  discrimination.  In  determining  the  reasonableness  or  un- 
reasonableness of  a  rule  adopted  bv  a  water  company  chartered  to 
supply  a  city  and  its  people  with  water,  we  must  necessarily  take  into 
consideration  its  relation  to  the  cit}',  and  its  compacted  population,  and 
the  various  elements  composing  such  a  population.  It  has  no  I'ight  to 
base  a  rule  on  the  theory  that  the  population,  as  a  whole,  is  dislionest. 
But  it  has  the  right  to  adopt  a  i-ule  which,  while  giving  the  honest  citizen 
what  he  pays  for,  will  prevent  the  dishonest  from  getting  what  he  never 
paid  for,  and  never  intended  to  pay  for,  and  said  he  never  wanted.  It 
ma}-  be  doubted  whether  the  company  has  the  right  to  make  an  arlii- 
trary  rul-e  requiring  the  citizen  to  pay  for  water  taken  through  his  hydrant 
for  sprinkling  purposes  for  seven  months  in  the  year,  when  he  does 


BROWN   V.    WESTERN    UNION    TELEGRAPH    CO.  475 

not  want  it  and  does  not  need  it  for  tliat  purpose  for  tbat  length  of 
time.  As  we  understand  the  relation  ot  the  complainant  to  the  com- 
pany in  respect  to  ihis  point,  under  the  fads  averred  in  his  bill,  this 
question  is  not  necessarily  in  the  case.  If,  when  he  wants  water  for 
sprinkling  purposes,  he  will  put  his  water  appliances  in  condition  for 
its  use  for  this  purpose,  and  apply  to  the  company  for  water  for  this 
purpose  for  a  less  period  of  time  than  for  the  whole  sprinkling  season 
fixed  by  the  company,  tendering  it  a  reasonable  price  for  the  water 
thus  demanded,  he  will  raise  and  present  the  question  of  the  reason- 
ableness or  unreasonableness  of  the  rule  of  the  compan}-  on  this  mat- 
ter assailed  by  the  bill.  As  we  have  held,  it  was  the  duty  of  complainant 
to  put  his  hydrant  and  its  appliances  in  a  condition  to  get  water  alone 
for  domestic  purposes,  when  he  wanted  it  only  for  that  purpose,  trail- 
ing to  put  them  in'condition  to  use  water  alone  for  domestic  purposes 
while  he  wanted  water  for  this  purpose  alone,  he  had  no  right  to  de- 
mand that  the  company  furnish  him  water  for  domestic  purposes  and 
agree  to  furnish  him  water  for  sprinkling  purposes  at  some  indefinite 
time  in  the  future,  and  for  an  indefinite  period  thereafter,  as  he  might 
call  for  it  or  need  it.  Such  a  demand,  it  seems  to  us,  ignores  the  recip- 
rocal relations  and  duties  existing  between  city  water  companies  and 
the  inhabitants  of  the  cities  they  are  organized  to  suppl}'  with  water. 
There  is  no  error  in  the  decree  of  the  chancellor,  and  it  is  affirmed, 
with  costs. 

The  other  judges  concur. 


BROWN  V.   WESTERN   UNION   TELEGRAPH   CO. 
Supreme  Court  of  the  Territory  of  Utah,  1889. 

[6  Utah,  219.] 

JuDD,  J.  This  is  an  action  brought  by  the  plaintiff  against  the  de- 
fendant in  the  District  Court  at  Ogden  City.  The  facts  of  the  case  show 
that  on  the  8th  of  April,  1888,  between  5  and  6  o'clock  in  the  evening, 
the  plaintiff,  a  girl  about  five  years  old,  had  her  hand  badly  mashed, 
and  to  such  an  extent  that  her  forefinger  of  the  right  hand  was  broken 
at  the  middle  joint.  It  seems  that  she,  together  with  other  children, 
were  engaged  playing  upon  the  turn-table  of  the  railroad  at  a  station 
called  Promontory,  in  Box  Elder  Count}-,  Utah  Territory,  about  50  miles 
north  of  Ogden  City.  That  when  her  father  discovered  her  injury, — 
there  being  no  physician  that  could  be  reached  nearer  than  Ogden  City, 

—  he  at  once  telegraphed  to  that  city  for  a  physician.  To  this  telegram 
he  received  an  answer  that  the  physician  could  not  come.  Immediately 
upon  the  receipt  of  the  telegram  from  the  |)liysician  he  sent  the  follow- 
ing :   '•  Promontory,  April  8th,  1888.     To  J.  R.  Brown,  Ogden,  Utah. 

—  Send  doctor  on  first  train.     Katy  has  broken   her  finger.     T.  G. 


476  BROWN   V.    WESTERN   U.'ION   TELEGRAPH   CO. 

Brown."  This  telegram  was  received  by  the  agent  of  the  defendant 
at  Promontor}-,  who  was  likewise  the  agent  of  the  railroad,  at  6.30 
o'clock,  Promontory-  time,  —  7.50  Ogden  time.  Trains  left  Ogden, 
going  west,  one  at  7  p.  m.,  and  one  at  11.30  at  night.  This  despatch 
was  not  delivered  by  the  company  to  Brown  nntil  7.35  a.  m.  the  next 
day.  The  testimony  sufficient!}'  shows  that  if  the  despatch  had  been 
delivered  to  Brown  at  Ogden,  that  he  would  have  procured  a  physician 
to  go  to  Promontory,  who  would  have  left  on  the  11.30  train,  and 
arrived  at  Promontory  at  2  o'clock.  As  it  was  no  physician  reached 
the  plaintiff  that  night,  and  the  next  morning  her  father  took  her  upon 
the  train,  and  arrived  at  Ogden  at  10  o'clock  on  the  morning  of  the  9th. 
When  the  father  arrived  at  Ogden  he  at  once  took  her  to  the  office  of 
a  physician  and  surgeon  by  the  name  of  Bryant,  who  found,  as  he 
states,  that  the  fore  part  of  the  finger,  from  where  it  was  broken,  was, 
to  use  liis  own  language,  "  dead  ;  "  that  by  twisting  the  finger  around, 
or  by  some  other  means  not  entirely  described,  the  circulation  had  been 
strangled  ;  and  that  he  found  it  in  sucli  a  condition  that  it  was  impossi- 
ble to  re-establish  circulation,  and  that  amputation  was  necessary,  and 
he  amputated  it  at  the  middle  joint.  The  action  of  the  plaintiff  against 
the  defendant  is  founded  upon  the  idea  that  if  the  despatch  sent  to 
Brown  had  been  delivered  in  proper  time  a  physician  would  have 
arrived  at  Promontory  at  the  hour  of  2  o'clock  that  night  after  the 
accident,  and  that  the  finger,  by  proper  surgical  treatment,  could  have 
been  saved,  and  the  plaintiff  saved  of  much  pain  and  sulfering.  Tliis 
theory  of  the  case  is  put  in  issue  b}'  the  defence  and  the  ground  taken 
is,  first,  that  the  proof  does  not  show  that  the  final  amputation  of  the 
finger  was  the  result  of  any  delay  in  procuring  a  pliysician,  and  that  it 
was  probably  the  result  of  the  accident  which  so  I^adly  damaged  the 
finger  ;  and  that  in  any  event  amputation  would  have  been  necessar}', 
and  that  the  delay  and  negligence,  if  any,  of  the  defendant,  was  not 
the  proximate  cause  of  the  loss  of  the  finger,  and  the  pain  and  suffer- 
ing ;  and  tlierefore  tl)e  defendant  alleges  that  it  is  not  liable  ;  and  for 
further  defence  it  sets  up  that  the  manager  of  the  defendant  compan}* 
in  charge  of  the  office  in  Ogden  had  established  certain  rules  with 
reference  to  the  deliver}'  of  despatches  from  that  office,  and  that  those 
rules  were  reasonable,  and  that,  all  other  questions  aside,  it  is  not  liable. 
It  alleges  and  shows  by  the  proof  that,  the  day  of  the  reception  of 
this  dcs[)atch  at  Pi'omontory  and  its  transmission  to  Ogden  City  being 
Sunday,  its  office  hours  were  from  8  to  10  o'clock  A.  M.  and  4  to  6  p.  m., 
and  that  on  week-days  from  7.30  A.  M.  to  8  p.  M.  Tliat  this  despatch, 
being  received  at  Ogden  at  8  o'clock  and  9  minutes,  was  more  than 
two  hours  after  the  office  hours  established  for  this  office,  and,  to  use 
the  language  of  the  brief  of  tlie  counsel  for  the  defendant,  "  these 
hours  being  reasonable,  the  company  was  not  bound  to  deliver  the 
despatch  received  outside  of  the  hours,  no  matter  what  the  conse- 
quences may  have  been." 

So  far  as  the  first  point  of  the  defence  is  concerned,  —  that  is,  •'  that 


BROWN    V.    WESTKUN    UNION    TELEGRAPH    CO.  477 

the  proof  does  not  sufficiently  show  that  the  result  to  the  plaintiff  would 
have  been  different  had  the  despatch  been  delivered,"  —  this  court  is 
content  to  observe  that  all  those  matters  were  submitted  fairlv,  and 
under  proper  instructions  b}'  the  trial  judge  to  the  jury,  and,  the  jury 
having  found  against  the  defendant,  the  rule  of  this  court  is  that  it  will 
not  disturb  the  verdict  of  a  jury  where  the  evidence  tends  to  support  it, 
and  under  that  rule  this  c^se  falls.  But  the  more  important  question 
arises  on  the  ground  as  to  the  right  of  the  defendant  to  establish  rules 
for  its  guidance  in  the  delivery  of  telegrams.  It  vvill  l>e  remembered 
that  this  telegram  was  received  at  Promontory,  and  the  mone}-  paid 
for  its  transmission  to  the  Ogden  office,  and  that  it  was  transmitted  in 
due  time  to  the  last-named  office  ;  and  the  only  complaint,  when  the 
case  is  stripped  of  verbiage,  is  that  the  defendant  company  were  guilty 
of  negligence  in  failing  to  deliver  this  telegram  when  it  reached  Ogden 
City  from  that  office  to  Brown,  the  person  to  whom  it  was  sent ;  and 
the  direct  defence  of  the  defendant  is  that  it  was  received  after  its 
office  hours,  which  it  had  the  right  to  establish,  and  that  therefore 
there  was  no  negligence.  In  other  words,  the  defendant  says  ''  that  we 
have  the  right  to  establish  hours  for  the  transmission  and  deliver}'  of 
despatches,  and  we  have  the  right  to  judge  of  the  reasonableness  of 
those  hours,  and  that,  so  long  as  we  are  within  the  observance  of  the 
rules  and  hours  which  we  have  established,  we  are  guilty  of  no  negli- 
gence ;  "  the  argument  being  that  the  public  is  bound  to  take  notice  of 
tbe  hours  and  rules  that  "  we  have  established  for  business."  Can  this 
contention  be  sanctioned,  is  the  important  question  which  arises  in  tliis 
case.  Whether,  if  a  telegram  were  tendered  the  compan}'  to  be  sent 
by  them  out  of  their  office  iiours,  they  would  be  bound  to  receive  and 
send  it,  is  a  question  with  which  the  court  is  not  now  dealing,  and 
upon  wliich  it  expresses  no  opinion  ;  but  we  are  of  the  opinion  tliat, 
having  received  and  transmitted  this  despatch,  the  measure  of  diligence 
to  be  applied  to  the  conduct  of  the  defendant,  with  reference  to  its  de- 
livery, is  not  to  be,  and  cannot  be,  decided  by  an}'  rules  or  hours  that 
the  compan}'  may  see  fit  to  establish.  Whether  in  the  individual  case 
the  rules  of  the  company  are  or  ai'e  not  reasonable,  or  whether  it  is  or 
is  not  guilty  of  negligence  in  failing  to  deliver  a  message,  is  a  question 
which  the  court  will  not  allow  the  company  to  decide.  It  is  a  funda- 
mental rule  in  the  administration  of  remedial  justice  that  courts  claim 
and  exercise  for  themselves  the  right  to  adjudge  in  each  individual 
case  as  it  may  be  presented  the  question  of  whether  the  parties  sued 
are  or  are  not  guilty  of  wrong,  with  reference  to  the  particular  trans- 
actions under  investigation.  Whether  the  rules  established  In'  the 
defendant  are  reasonable  or  not,  as  we  have  said,  is  a  question  to  be 
decided  by  the  court  or  jtn-y,  as  the  case  may  be,  in  each  indivi(Uial 
case  as  it  arises.  It  will  not  do  to  say  that,  because  the  compan}'  has 
the  right  to  establish  rules  for  its  government,  therefore  those  rules 
determine  the  question  of  negligence  or  no  negligence.  It  must  be 
remembered  that  this  defendant,  in  offering  its  services  to  the  public, 


478  BKOWN    V,    WESTERN    UNION   TELEGRAPH   CO, 

and  receiving  tlie  money  of  people  for  sending  despatclies  from  one 
point  to  another,  is,  to  sa-y  the  least  of  it,  occupying  the  position  of  a 
public  institution.  In  the  language  of  Chief  Justice  VVaite,  in  the  case 
of  Munn  v.  Illinois,  94  U.  S.  113  :  "•  When  the  owner  of  property  de- 
votes it  to  a  use  in  which  the  public  has  an  interest,  he  in  effect  grants 
to  the  public  an  interest  in  such  use,  and  must  to  the  extent  of  tliat 
interest  sul)niit  to  be  controlled  bv  the  public  for  the  common  good,  as 
long  as  he  maintains  the  use."  This  defendant  corapan}-,  by  its  invita- 
tion to  the  public  to  use  its  lines  for  the  transmission  of  messages, 
impliedly  grants  to  the  public  an  interest  in  the  use  of  its  wires,  and, 
having  done  this,  like  all  other  institutions  of  like  character,  its  rules 
and  regulations  are  at  all  times  open  to  inquiry  as  to  their  reasonable- 
ness, and  its  conduct  is  at  all  times  open  to  inquiry,  as  to  whether  it  is 
guilt}'  of  negligence  or  not.  We  are  of  the  opinion  that  tiie  question 
in  this  case  of  the  reasonableness  of  these  rules  of  the  company  was 
properly  submitted  to  the  jury ;  and  we  are  also  of  the  opinion  that  the 
question  of  whether  this  company  was  guilty  of  negligence  in  failing  to 
deliver  the  despatch  was  properl}-  submitted  to  the  jury  ;  and  in  both 
instances  the  jury  found  against  the  defendant. 

In  order  that  there  may  be  no  misunderstanding  as  to  the  judgment 
of  the  court  in  the  case,  we  lay  down  the  following  rule  as  applicable 
to  the  facts  in  the  case  :  It  will  be  observed  that  this  despatch  was  in 
plain,  unambiguous  language.  It  said:  "Send  doctor  on  first  train. 
Kat}'  has  broken  her  finger."  When  that  despatch  was  received  at 
Promontor}'  for  transmission,  and  when  it  was  received  at  Ogden  by 
the  agents  of  the  defendant,  the  supreme  importance  of  prompt  and 
active  service  upon  the  part  of  the  defendant's  agents  in  delivering  that 
telegram  was  made  manifest  from  its  very  reading,  and  we  hold  that 
the  degree  of  diligence  required  of  the  defendant  was  equal  in  im|)or- 
tance  to  the  emergency  of  the  occasion,  and  this  without  an}-  regard  to 
rules  and  hours  established  by  the  company,  as  testified  to  in  this 
regard.  It  must  be  kept  in  mind  that  this  company  at  Promontory, 
by  its  agent,  received  this  despatch,  and  received  the  money  for  its 
transmission,  and  that  it  was  transmitted  to  the  office  at  Ogden  ;  that 
this  despatch  was  to  the  effect  that  a  child  was  suffering  with  a  broken 
finger;  that  it  was  important  that  a  physician  and  surgeon  be  immedi- 
ately sent ;  and  to  allow  the  defendant,  upon  the  pretext  that  it  was 
received  out  of  its  office  hours,  to  let  it  lie  there  until  7.35  the  next 
morning,  and  then  to  excuse  it  from  delivery  under  such  circumstances 
would  be  the  greatest  injustice.  It  would  be  to  put  the  pul)lic  at  the 
mercy  entirely,  or  we  may  say  the  caprice  and  will,  of  public  institu- 
tions, to  which  they  are  compelled  to  resort  in  the  transaction  of 
liusiness.  So  far  as  the  receipt  and  delivery  of  telegrams  with  refer- 
ence to  commercial  transactions  are  concerned,  we  do  not  express  an 
opinion,  but  we  do  not  hesitate  to  say  that  when  a  despatch  shown  to 
be  received  by  the  company  for  ti'ansmission,  which  upon  its  face 
demonstrates  the  importance  of  delivery,  as  in  this  case,  the  degree  of 


WESTERN    UNION    TELEGRAPH    CO.    V.    NEEL.  479 

diligence  is  to  be  in  proportion  to  tlie  exigencies  of  tluit  case.  Nor 
has  tlie  defendant  tlie  right  to  complain  at  this.  It  sets  itself  up  as  a 
transmitter  of  messages  for  the  public,  and  it  receives  franchises  from 
the  State,  in  order  that  it  may  do  business;  it  receives  money  from  the 
public  for  tlie  transmission  of  messages,  and,  like  all  other  institutions, 
it  should  be  willing  to  deal  with  the  public  in  a  fair  and  just  manner, 
and  not  unckMlake  to  screen  itself  behind  mere  office  rules  and  hours, 
which  in  all  prol)ability  are  made  for  the  mere  convenience  of  the 
employees;  and  especially  in  cases  like  this,  where  human  pain,  suffer- 
ing, and  deformation  hang  upon  prompt  action.  Nor  are  these  views 
new,  but  find  ample  authorit}'  in  adjudged  eases  of  high  respectability. 
As  a  sample  we  cite  the  cases  of  Telegraph  Co.  v.  Broesche,  10  S.  W. 
Rep.  734,  and  Telegraph  Co.  v.  Sheffield,  10  S.  W.  Rep.  752.  Other 
eases  could  be  cited,  but  the  foregoing  are  sufficient.  The  case  was 
fairly  submitted  by  the  court  to  the  jury,  under  instructions  in  some 
respects  more  favorable  to  the  defendant  than  the  law  warranted,  and 
we  are  satisfied  that  substantial  justice  has  been  reached,  and  the 
judgment  of  the  court  below  will  be  affirmed,   with  the  costs. 


WESTERN   UNION   TELEGRAPH   CO.   v.  NEEL. 
Supreme  Court  of  Texas,   1894. 

[86  Tex.  368.] 

Gaines,  J.  "  Upon  the  trial  of  the  above  entitled  cause  in  the  court 
below,  it  was  shown,  that  Jodie  Roden,  a  sister  of  the  appellee  Ella 
Neel,  was  lying  at  the  point  of  death  at  her  home  near  Hope,  in  Lavaca 
County  ;  that  a  brother  of  appellee  went  to  the  town  of  Yoakum,  where 
a|)pellant  had  an  office,  about  4  o'clock  in  the  morning  of  July  29, 
1891,  and  caused  a  telegram  to  be  sent  to  Cuero  to  l)e  addressed  to 
IMrs.  Neel,  care  of  the  Dromgoole  Hotel,  asking  her  to  come  to  her 
sister  at  once.  The  telegram  was  received  at  Cuero  about  4.50 
o'clock,  but  was  not  delivered  until  about  10  o'clock  on  the  same 
morning.  Mrs.  Neel  set  out  at  once  to  go  to  her  sister,  but  Mrs. 
Roden  had  died  when  Mrs.  Neel  arrived.  If  the  telegram  had  been 
delivered  promptl}-  when  it  was  received  at  Cuero,  Mrs.  Neel  could 
have  reached  her  sister  before  she  died. 

''  In  defence  of  this  suit  for  failure  to  deliver  said  telegram  promptl}-, 
the  appellant  pleaded  and  proved,  that  its  office  hours  at  Cuero  were 
from  7  o'clock  a.m.  to  7  o'clock  p.  m.,  and  that  the  messenger  did  not 
reach  the  office  until  7  o'clock  a.  m.  ;  and  there  was  evidence  that  after 
this  hour  the  telegram  was  promptly  delivered  ;  and  it  alleged  that  the 
fixing  of  office  hours  was  a  reasonable  regulation,  that  it  was  permitted 
by  law  to  make. 


480  WESTERN    UNION    TELEGRAPH    CO.   V.    NEEL. 

'•'The  court  charged  the  jur}-,  in  effect,  that  such  regulation  was  proper, 
but  that  the  sender  of  the  telegram  must  either  know  or  be  reasonably 
presumed  to  know  of  it,  or  be  informed  thereof  by  defendant's  agent. 

"The  defendant  then  requested  the  following  instruction  totlie  jury: 
'All  messages  to  be  sent  by  telegraphic  wire  are  accepted  subject  to  the 
delays  ordinarily-  incurred  during  transmission;  and  if  the  jury  believe 
from  the  evidence  that  the  defendant  company  had  reasonable  ofKce 
hours,  during  wliich  it  delivered  telegraphic  messages  in  the  town  of 
Cuero,  it  was  not  by  law  compelled  to  deliver  messages  outside  of  said 
hours  ;  and  sucli  reasonalile  business  hours  were  implied  in  the  contract 
between  tlie  plaintiff  and  defendant  compan}-,  if  such  contract  has  been 
proved,  unless  specially  stated  or  understood  by  the  parties  to  said 
contract  that  the  services  to  be  performed  should  be  performed  other- 
wise than  in  tlie  usual  manner  and  subject  to  the  usual  rules  under 
which  the  compan}-  does  business.' 

"  The  instruction  asked  by  the  defendant  was  pertinent,  because  if  the 
message  had  been  delivered  within  a  reasonable  time  after  7  o'clock, 
the  plaintiff  would  probabl}'  not  have  had  time  to  see  her  sister  before 
she  died." 

Upon  the  foregoing  statement,  which  we  have  quoted  from  the  cer- 
tificate of  the  Court  of  Civil  Appeals,  the}'  submit  to  us  the  following 
questions : 

"Believing  that  it  has  never  been  authoritativel}'  settled  by  our  Su- 
preme Court,  that  it  is  the  duty  in  such  case  of  the  telegraph  company 
to  give  notice  to  the  sender  of  a  despatch  of  the  office  hours  at  the 
receiving  office,  provided  they  are  established  and  reasonal)le,  and  that 
the  message  will  not  be  delivered  outside  of  such  office  hours,  we 
certif}-  for  the  decision  of  the  Supreme  Court,  which  arises  on  appeal 
to  this  court,  whether  or  not,  in  the  absence  of  proof  of  a  special  con- 
tract to  send  and  deliver  at  once,  and  the  absence  of  actual  notice  to 
the  sender  of  the  regulation  and  office  hours,  the  undertaking  of  the 
company  was  to  deliver  the  message  at  once. 

"•  Should  the  instruction  have  been  given?" 

We  are  of  the  oi)iiiion,  that  under  the  circumstances  stated  in  the 
question,  it  was  not  the  duty  of  the  company  to  deliver  before  its  office 
hours,  and  that  the  requested  charge  should  have  been  given.  A  tele- 
graph compan}',  from  the  necessity  of  the  case,  must  have  power  to 
make  some  regulations  for  the  conduct  of  its  business  ;  and  when  such 
regulations  are  reasonable,  it  is  generally  conceded  that  a  party  who 
contracts  with  such  a  comjjan}-  for  the  transmission  of  a  message  is 
bound  by  them,  provided  he  has  notice  of  their  existence.  But 
whether  or  not  he  is  bound  when  he  has  no  notice,  is  a  question  which 
is  by  no  means  settled.  We  concur  with  the  Court  of  Civil  Appeals  in 
holding  that  the  question  has  never  been  authoritativel}-  determined  in 
this  court. 

Under  the  peculiar  circumstances  of  the  case,  it  was  held  in  Western 
Union  Telegraph  Company  v.  Broesche,  72  Tex.  G54,  that   the  fact 


WESTERN   UNION   TELEGRAPH    CO.    V.    NEEL.  481 

that  the  company's  office  at  the  delivering  station  was  closed  at  the 
time  tlie  despatch  was  transmitted,  did  not  exonerate  it  from  liability. 
IJut  the  agent  of  the  company  who  accepted  the  message  for  trans- 
mission testified,  that  he  knew  that  the  pnrpose  was  to  notify  the 
person  addressed  of  the  expected  arrival  of  the  dead  body  of  the  plain- 
tiffs wife  at  the  railway  station,  and  that  unless  it  was  delivered  on 
the  same  evening  the  corpse  would  reach  the  station  before  the  tele- 
gram. Having  received  the  plaintiffs  money,  knowing  his  object  in 
sending  the  message,  and  that  that  object  could  only  be  attained  In* 
prompt  transmission  and  deliver}'  to  the  person  addressed,  it  could  not 
legally  urge  its  rules  as  to  office  hours  as  an  excuse  for  not  delivering 
the  despatch  until  the  next  day.  It  was  properly  held  estopped  to 
deny  that  the  contract  was  for  an  immediate  deliver}'. 

In  the  Bruner  case,  19  Southwestern  Reporter,  149,  it  would  seem 
that  the  defence  was  set  up,  that  at  the  time  the  despatch  was  taken 
for  transmission  the  office  to  which  it  was  to  be  sent  was  closed  ;  but 
we  think  it  is  apparent  from  the  opinion  that  the  point  before  us  was 
not  involved.  The  court  in  their  opinion  say:  "Appellant  accepted 
tlie  telegram  and  undertook  to  deliver  it  about  9  o'clock  at  night.  It 
cannot  be  excused  in  its  failure  to  perform  the  contract  because  its 
office  was  practically  closed  against  Alvin,  especially  since  it  does  not 
appear  that  anj'  effort  was  made  to  send  the  message  until  next  morn- 
ing, when  it  was  too  late  for  the  appellee  to  catch  the  train  to 
Galveston." 

Upon  the  more  general  question,  whether  a  part}-  to  a  contract  with 
a  telegraph  company  is  bound  by  the  rules  and  regulations  of  the  com- 
pan\'  of  which  he  has  no  notice,  the  authorities  are  not  in  accord. 

In  Birney  v.  Telegraph  Compan}',  18  Md.  341,  the  court  say,  that  a 
person  delivering  a  message  for  transmission  "  is  supposed  to  know 
that  the  engagements  of  the  compan}'  are  controlled  b}'  those  rules  and 
regulations,  and  does  himself  in  law  engraft  them  in  his  contract  of 
bailment,  and  is  bound  by  them."  The  doctrine  is  reaffirmed  in  Tele- 
graph Company  r.  Gildersleeve,  29  TMd.  232  :  but  is  questioned  by 
Judge  Thompson  in  his  work  on  the  Law  of  Electricity  (section  212). 
The  law  of  Maryland  expressly  provides  that  telegraph  companies  may 
make  rules  and  regulations,  and  the  opinions  in  the  cases  cited  lay 
stress  upon  that  fact ;  but  it  seems  to  us,  that  in  the  abse|^ce  of  a 
statute  the  power  is  necessaril}'  implied. 

In  Given  v.  Telegraph  Company,  24  Fed.  Rep.  119,  it  was  held,  in 
effect,  that  a  telegraph  company  could  establish  reasonable  office  hours, 
and  that  the  sender  of  a  message  was  presumed  to  contract  with  refer- 
ence to  such  a  regulation,  although  it  was  not  known  to  him  at  the  time 
that  he  entered  into  tlie  contract. 

In  Telegraj)!!  Company  v.  Harding,  103  Ind.  505,  the  same  rule  was 
applied  in  an  action  for  the  recovery  of  a  penalty  given  by  statute  f(ir 
the  failure  to  make  prompt  delivery  of  a  message  ;  but  the  court  ex- 
presslv  decline  to  say  that  it  ought  to  apply  to  an  ordinary  suit  for  the 

31 


482  WESTERN   UNION   TELEGRAPH    CO.    V.    NEKL. 

recover}-  of  damages  for  the  breach  of  a  contract  to  transmit  a  tele- 
gram. The  court  quote  from  the  opinion  of  Mr.  Justice  Miller  in 
Given's  case,  supra,  as  follows:  "  Nor  do  we  see  that  it  is  the  dut\- 
of  the  Western  Union  Telegraph  Company  to  keep  the  employees  of 
every  one  of  its  offices  in  the  United  States  informed  of  the  time  when 
any  other  office  closes  for  the  night.  The  immense  number  of  these 
offices  over  the  United  States,  the  frequent  changes  among  them  as  to 
the  time  of  closing,  and  the  prodigious  volume  of  a  written  book  on 
this  subject,  seems  to  make  this  onerous  and  inconvenient  to  a  degree 
which  forbids  it  to  be  treated  as  a  duty  to  its  customers,  for  the  neglect 
of  which  it  must  be  held  liable  for  damages.  There  is  no  more  obliga- 
tion to  do  this  in  regard  to  offices  in  the  same  State  than  those  four 
thousand  miles  awa}-,  for  the  communication  is  between  them  all  and 
of  equal  importance." 

In  Behm  v.  Telegraph  Company,  8  Bissell,  131,  Judge  Gresham,  in 
charging  the  jury,  recognized  the  doctrine,  that  reasonable  regulations 
as  to  the  number  of  servants  at  small  stations  should  be  considered  in 
determining  the  question  of  diligence  in  the  deliver}-  of  a  message,  and 
that  the  absence  of  a  messenger  boy  at  dinner  might  be  a  just  excuse 
for  delay  in  such  delivery.  But  see  Tel.  Co.  v.  Henderson,  89  Ala.  510. 
Such  are  the  cases  bearing  immediately  upon  the  question  submitted 
for  our  determination.  There  are,  however,  some  railroad  cases  which 
seem  to  involve  a  similar  principle.  The  contract  of  a  railroad  com- 
pany with  a  passenger  is  to  carry  him  to  his  point  of  destination  under 
the  contract  without  unreasonable  delay.  Yet  it  is  held,  that  a  passen- 
ger who  procures  a  ticket  has  no  right  to  demand  an  immediate  carriage, 
and  must  wait  till  the  departure  of  the  regular  trains.  Hurst  v.  Rail- 
way, 19  C.  B.  N.  S.  310;  Gordon  v.  Railway,  52  N.  H.  596.  There 
are  delays  which  grow  out  of  the  necessary  regulation  of  the  business, 
for  which  the  carrier  cannot  be  held  responsible.  If  a  passenger,  on 
the  other  hand,  be  misled  by  the  company's  time  table,  and  buy  his 
ticket  upon  the  faith  of  it,  the  company  may  be  held  liable  for  not 
carrying  him  according  to  the  table.  In  an  English  case  of  this  char- 
acter the  action  was  sustained  on  the  ground  of  deceit.  Denton  v. 
Railway,  5  El.  &  Bl.  860. 

A  limit  as  to  the  number  of  its  trains  and  intervals  of  time  more  or 
less  extended  are  obviously  indispensable  to  the  conduct  of  the  busi- 
ness of  a  railway  company.  So  also  with  telegrapli  companies. 
Although  not  absolutely  necessary,  some  regulations  as  to  office  hours 
and  as  to  the  number  of  employees  at  each  office  are  reasonably  re- 
quired for  the  successful  management  of  their  business,  both  in  their 
own  interest  and  in  that  of  the  public  in  general.  It  may  be  to  the 
interest  of  some  individual,  upon  a  paiticular  occasion,  or  even  at  all 
times,  that  every  office  of  a  telegiapli  company  should  be  kept  open  at 
all  hours,  and  that  the  working  force  should  be  sufficient  to  receive 
and  deliver  a  despatch  without  a  moment's  delay.  So  also,  it  may  be 
to  the  interest  of  a  very  few  that  an  office  should  be  kept  at  some  point 


SEARS    V.    EASTERN   RAILROAD.  483 

on  the  line  where  an  office  could  not  be.  maintained  in  an}'  way  without 
a  loss  to  the  company.  If  in  the  first  instance  the  company  sliould  be 
required  to  keep  the  necessary  servants  to  keep  its  business  going  at 
all  hours,  it  would  result  in  the  necessity  of  closing  many  offices  or  in 
the  imposition  of  additional  charges  upon  its  customers  in  general,  in 
order  to  recoup  the  loss  incident  to  their  being  maintained.  So  on  the 
other  hand,  if  they  should  be  required  to  keep  offices  wherever  it  might 
result  to  the  convenience  of  a  few  persons,  additional  burdens  upon  the 
general  public  would  in  like  manner  result. 

It  follows,  we  think,  that  the  public  interest  demands  that  these 
companies  should  have  the  power  to  establish  reasonable  hours  within 
which  their  business  is  to  be  transacted,  and  that  individual  interests 
must  yield.  It  seems  to  us,  that  the  reasonableness  of  a  regulation  as 
to  hours  of  business  is  sufficiently  obvious  to  suggest  to  the  sender  of 
a  message  who  desires  its  delivery  at  an  unusuall}'  early  hour  for  busi- 
ness, the  propriet}'  of  making  inquiry  before  he  enters  into  the  contract. 

In  the  application  of  the  principles  of  law  to  new  cases,  we  should 
proceed  with  caution,  and  therefore  we  deem  it  proper  to  say  that  our 
ruling  is  restricted  to  the  question  submitted.  Whether  tlie  rule  we 
have  announced  should  be  applied  to  other  regulations  by  telegraph 
companies,  we  leave  for  decision  when  the  question  may  arise. 

This  opinion  will  be  certified  in  answer  to  the  questions  submitted. 


SEARS   V.   EASTERN   RAILROAD. 

Supreme  Judicial  Cocrt  of  Massachusetts,  1867. 

[14  Allen,  433] 

Action  containing  one  count  in  contract  and  one  in  tort.  Each 
count  alleged  that  the  defendants  were  common  carriers  of  passengers 
between  Boston  and  Lynn,  and  that  on  the  15th  of  September,  1865, 
the  plaintitf  was  a  resident  of  Nahant,  near  Lynn,  and  the  defendants 
before  then  publicly  undertook  and  contracted  with  the  public  to  run  a 
train  for  the  carriage  of  passengers  from  Boston  to  Lynn  at  nine  and 
one  half  o'clock  in  the  evening  each  week  day,  Wednesdays  and  Satur- 
days excepted  ;  and  the  plaintiff,  relying  on  said  contract  and  under- 
taking, purchased  of  the  defendants  a  ticket  entitling  him  to  carriage 
upon  their  cars  between  Boston  and  Lynn,  and  paid  therefor  twenty- 
five  cents  or  thereabouts,  and  on  a  certain  week  day  thereafter,  neither 
Wednesday  nor  Saturday,  namely,  on  the  15th  of  said  September,  pre- 
sented himself  on  or  before  tlie  hour  of  nine  and  a  half  o'clock  in  the 
evening  at  the  defendants'  station  in  Boston  and  offered  and  attempted 
to  take  the  train  undertaken  to  be  run  at  that  hour,  as  a  passenger,  but 
the  defendants  negligently  and  wilfulh'  omitted  to  run  the  said  train  at 


484  SEAES   V.    EASTERN    HAILROAD, 

that  hour,  or  any  train  for  Lynn,  till  several  hours  thereafter  ;  wherefore 
the  plaintiff  was  compelled  to  hire  a  livery  carriage  and  to  ride  therein 
to  Lynn  by  nighl,  and  was  much  disturbed  and  inconvenienced. 

The  following  facts  were  agreed  in  the  Superior  Court.  The  defend- 
ants were  common  carriers,  as  alleged,  and  inserted  in  the  Boston  Dail}' 
Advertiser,  Post,  and  Courier,  from  the  15th  day  of  August  till  the 
15th  day  of  September  an  advertisement  announcing  the  hours  at  which 
trains  would  leave  Boston  for  various  places,  and  among'  others  that  a 
train  would  leave  for  Lynn,  at  9.30  p.  m.,  except  Wednesdays,  when  it 
would  leave  at  11.15,  and  Saturdays,  when  it  would  leave  at  10.30. 

The  plaintiff,  a  resident  of  Nahant,  consulted  one  of  the  above 
papers,  a'oout  the  9th  of  September,  1865,  for  the  purpose  of  ascertain- 
ing the  time  when  the  latest  night  train  would  start  from  Boston  for 
Lynn  on  the  15th,  in  order  to  take  the  train  on  that  day,  and  saw  the 
advertisement  referred  to.  On  the  15th,  which  was  on  Friday,  he 
came  to  Boston  from  Lynn  in  a  forenoon  train,  and  in  the  evening, 
shortly  after  nine  o'clock,  presented  himself  at  the  defendants'  station 
in  Boston  for  the  purpose  of  taking  the  9.30  train  for  Lynn,  having 
with  him  a  ticket  which  previousl}-  to  September  9th  he  had  purchased 
in  a  package  of  five.  This  ticket  specified  no  particular  train,  but  pur- 
ported to  be  good  for  one  passage  in  the  cars  between  Boston  and 
Lynn  during  the  year  1865.  He  learned  that  this  train  had  been  post- 
poned to  11.15,  on  account  of  an  exhibition,  and  thereupon  hired  a 
buggy  and  drove  to  Lynn,  arriving  there  soon  after  10.30.  He  had 
seen  no  notice  of  any  postponement  of  this  train.  He  once,  in  1864, 
observed  a  notice  of  postponement,  and  heard  that  the  defendants 
sometimes  postponed  their  late  trains. 

For  several  years  before  1865  the  defendants'  superintendent  had 
been  accustomed  occasionally  to  postpone  this  train,  as  often  as  from 
once  to  three  times  a  month,  for  the  purpose  of  allowing  the  public  to 
attend  places  of  amusement  and  instruction,  and  also  upon  holidays 
and  other  pul)lic  occasions  in  Boston  ;  giving  notice  thereof  by  hand- 
bills posted  in  the  defendants'  cars  and  stations.  On  the  13th  of  Sep- 
tember, 1865,  in  pursuance  of  this  custom,  he  decided  to  postpone  this 
train  for  September  lotli  till  11.15,  and  on  the  same  day  caused  notice 
thereof  to  be  printed  and  posted  in  the  usual  manner.  The  train  was 
so  postponed,  and  left  Boston  at  11.15,  arriving  at  Lynn  at  11.45. 

The  defendants  offered  to  prove,  if  competent,  that  this  usage  of  de- 
taining the  train  was  generally  known  to  the  people  using  the  Eastern 
Railroad,  and  that  the  number  of  persons  generally  going  by  the  post- 
poned train  was  larger  than  generally  went  by  tlie  9.30  train,  and  was 
larger  on  the  evening  in  question  ;  but  at  the  station  in  Boston  there 
were  persons  complaining  of  the  postponement  of  the  train,  and  leaving 
the  station. 

It  was  agreed  that,  if  on  these  facts  the  plaintiff  was  entitled  to  re- 
cover, judgment  should  be  entered  in  his  favor  for  ten  dollars,  without 
costs.  Judgment  was  rendered  for  the  defendants,  and  the  plaintiff 
appealed  to  this  court. 


SEARS   V.   EASTERN   RAILROAD.  485 

Jl  L.  Stackpole,  for  the  plaintiff. 

C  P.  tTudd,  for  the  defendants.  If  the  plaintiff  can  maintain  an}' 
action,  it  must  be  upon  the  count  in  contract.  There  was  no  proof  of 
deceit.  Tr3-on  v.  Whitmarsh,  I  Met.  1.  What  then  was  the  nature  of 
the  contract  between  the  parties?  The  ticket  merel}-  secured  one  pas- 
sage at  an}'  time  in  1865.  This  was  a  contract  to  carrj-  the  plaintiff  in 
tlie  usual  way  of  transporting  passengers.  It  was  usual  to  postpone 
this  train,  in  order  to  give  the  public  greater  accommodations.  The 
plaintiff  was  bound  by  this  usage,  whether  he  knew  it  or  not.  If  he 
neglected  to  inquire  as  to  the  custom,  it  is  his  own  fault.  Van  Sant- 
voord  V.  St.  John,  6  Hill,  160;  Cheney  v.  Boston  &  Maine  Railroad, 
11  Met.  121;  Clark  v.  Baker,  lb.  186;  City  Bank  v.  Cutter,  3  Pick. 
414;  Ouimit  V.  Henshaw,  35  Vt.  616,  622.  If  the  advertisement  was 
an  offer  to  carr}'  passengers  at  9.30,  this  offer  was  withdrawn  on  the 
13lh  by  due  notice.  M'CuUoch  v.  Eagle  Ins.  Co.,  1  Pick.  278 ;  Boston 
&  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  The  acquiescence  in  the 
usage  of  tlie  defendants  by  the  pul»lic  for  ^-ears  shows  that  the  notice 
was  sufficient.  The  plaintiff  should  have  made  further  inquirj-.  Booth 
V.  Barnum,  9  Conn.  290;  Taylor  v.  Stibbert,  2  Ves.  Jr.  .437;  Taylor  v. 
Baker,  5  Price,  306. 

Chapman,  J.  If  this  action  can  be  maintained,  it  must  be  for  the 
breacli  of  the  contract  which  the  defendants  made  with  the  plaintiff. 
He  had  purchased  a  package  of  tickets  entitling  him  to  a  passage  in 
their  cars  for  each  ticket  from  Boston  to  Lynn.  This  constituted  a 
contract  between  the  parties.  Chenej'  v.  Boston  &  Fall  River  Railroad, 
11  Met.  121  ;  Boston  &  Lowell  Raih-oad  v.  Proctor,  1  Allen,  267;  Najac 
V.  Boston  &  Lowell  Raih'oad,  7  Allen,  329.  The  principal  question  in 
this  case  is,  what  are  the  terms  of  the  contract?  The  ticket  does  not 
express  all  of  them.  A  public  advertisement  of  the  times  when  their 
trains  run  enters  into  the  contract,  and  forms  a  part  of  it.  Denton  v. 
Great  Northern  Railway,  5  El.  &  Bl.  860.  It  is  an  offer  which,  when 
once  publicly  made,  becomes  binding,  if  accepted  before  it  is  retracted. 
Boston  &  Maine  Railroad  v.  Bartlett,  3  Cush.  227.  Advertisements 
offering  rewards  are  illustrations  of  this  method  of  making  contracts. 
But  it  would  be  unreasonable  to  hold  that  advertisements  as  to  the  time 
of  running  trains,  when  once  made,  are  irrevocable.  Railroad  corpora- 
tions find  it  necessary  to  var}-  the  time  of  running  their  trains,  and  thev 
have  a  right,  under  reasonable  limitations,  to  make  this  variation,  even 
as  against  those  who  have  purchased  tickets.  This  reserved  right 
enters  into  the  contract,  and  forms  a  part  of  it.  The  defendants  had 
such  a  right  in  this  case. 

But  if  the  time  is  varied,  and  tlie  train  fails  to  go  at  the  appointed 
time,  for  the  mere  convenience  of  the  company  or  a  portion  of  their  ex- 
pected passengers,  a  person  who  presents  himself  at  the  advertised 
hour,  and  demands  a  passage,  is  not  bound  by  the  change  unless  he  has 
had  reasonable  notice  of  it.  The  defendants  acted  upon  this  view  of 
their  dutv,  and  save  certain  notices.     Their  trains  had  been  advertised 


486  SEAKS   V.   EASTERN   RAILROAD. 

to  go  from  Boston  to  L^'iiii  at  9.30  p.  m.,  and  the  plaintiff  presented 
hiinself,  with  his  ticket,  at  the  station  to  take  the  train,  but  was  there 
informed  that  it  was  postponed  to  11.15,  The  postponement  had  been 
made  for  the  accommodation  of  passengers  who  desired  to  remain  in 
Boston  to  attend  places  of  amusement.  Certain  notices  of  the  change 
had  been  given,  but  none  of  them  had  reached  the  plaintiff.  They 
were  printed  handbills  posted  up  in  the  cars  and  stations  on  tlie  day  of 
the  change,  and  also  a  day  or  two  before.  Though  he  rode  in  one  of 
the  morning  cars  from  Ljnn  to  Boston,  he  did  not  see  the  notice,  and 
no  legal  presumption  of  notice  to  him  arises  from  the  fact  of  its  being 
posted  up.  Brown  v.  Eastern  Railroad,  11  Cush.  101;  Malone  v. 
Boston  &  Worcester  Railroad,  12  Gra}-,  388.  The  defendants  pub- 
lished daily  advertisements  of  their  regular  trains  in  the  Boston  Daily 
Advertiser,  Post,  and  Courier,  and  the  plaintiff  had  obtained  his 
information  as  to  the  time  of  running  from  one  of  these  papers.  If 
they  had  published  a  notice  of  the  change  in  these  papers,  we  think  he 
would  have  been  bound  by  it.  For  as  they  had  a  right  to  make  changes, 
he  would  be  bound  to  take  reasonable  pains  to  inform  himself  whether  or 
not  a  change  was  made.  So  if  in  their  advertisement  they  had  reserved 
the  right  to  make  occasional  changes  in  the  time  of  running  a  particu- 
lar train,  he  would  have  been  bound  by  the  reservation.  It  would  have 
bound  all  passengers  who  obtained  their  knowledge  of  the  time-tables 
from  either  of  these  sources.  But  it  would  be  contrary  to  the  elemen- 
t.uy  law  of  contracts  to  hold  that  persons  who  relied  upon  the  adver- 
tisements in  either  of  those  papers  should  be  bound  I)}'  a  reservation  of 
the  offer,  which  was,  without  their  knowledge,  posted  up  in  the  cars 
and  stations.  If  the  defendants  wished  to  free  themselves  from  their 
obligations  to  the  whole  public  to  run  a  train  as  advertised,  the}-  should 
publish  notice  of  the  change  as  extensively  as  they  published  notice  of 
the  regular  trains.  And  as  to  the  plaintiff,  he  was  not  bound  by  a 
notice  published  in  the  cars  and  stations  which  he  did  not  see.  If  it 
had  been  published  in  the  newspapers  above  mentioned,  where  his  in- 
formation had  in  fact  been  obtained,  and  he  had  neglected  to  look  for 
it,  the  fault  would  have  been  his  own. 

The  evidence  as  to  the  former  usage  of  the  defendants  to  make  occa- 
sional changes  was  immaterial,  because  the  advertisement  was  an  ex- 
press stipulation  which  superseded  all  customs  that  were  inconsistent 
with  it.  An  express  contract  cannot  be  controlled  or  varied  b}-  usage. 
Ware  c.  Hayward  Rubber  Co.,  3  Allen,  84. 

The  court  are  of  opinion  that  the  defendants,  by  failing  to  give  such 
notice  of  the  change  made  b}'  them  in  the  time  of  running  their  train  on 
the  evening  referred  to  as  the  plaintiff  was  entitled  to  receive,  violated 
their  contract  with  him,  and  are  liable  in  this  action. 

Judgment  for  the  plaintiff ?■ 

1  Compare :  Denton  v.  Gt.  No.  R.  R.,  5  E.  &  B.  860  ;  Savannah  Co.  v.  Berrand.  .')8 
Ga.  180;  Pittsburgh  Co.  )•.  Nuzum,  .50  Ind.  Ul  ;  Dulin^  i:  H.  R.,  C6  Mil.  120;  Clay- 
l.rouk  r.  R.  R.,  12  Mo.  4'32  ;  Gordon  v  R.  R.,  52  N.  H.  596  ;  Purcell  v.  R.  R.,  108  N.  C. 
414  ;  Wilson  v.  R.  R.,  63  Miss.  352  ;  Hatt  v.  R.  R.,  63  Mo.  51 1.  —Ed. 


CHICAGO,   B.    &   Q.    K.    CO.    V.    GUSTIN.  487 


CHICAGO,  B.   &  Q.  R.  CO.  v.  GUSTIN. 
Supreme  Court  of  Nebraska,   1892. 

[35  Neb.  86.1] 

Maxwell,  C.  J.  .  .  .  The  plaintiff  below  offered  in  evidence  the 
following  bill  of  lading : 

"  12-14-86-150  M.     Form  71. 

"  Cleveland,  Columbus,   Cincinnati  &  Indianapolis  Ry.  Co. 

"  Edgar  Hill,  Gen'l  Freight  Agent,  Cleveland,  O. 

"A.  S.  White,  Assist.  Gen'l  Freight  Agent,  Cleveland,  O. 


This  bill  of  lading  to  be  presented  by 
consignee  without  alteration  or  erasure. 


Marks,  Consignee,  Etc. 


A.  J.  Gustin,  Lincoln,  Neb. 

This  bill  of  lading  contracts  rates  from 

to  VVaun,  111.,  via  ,  at  25c.  per 

lot  and  charges  advanced  at  $ . 


Cleveland,  O.,  9-8,  1888. 

Received  from  the  Eberhard 
Manf.  Co.,  in  apparent  good  order, 
except  as  noted,  the  packages 
described  below  (contents  and 
value  unknown),  marked  and  con- 
signed as  per 

One  box  iron  castings $1  25 

(Printed  across  the  end :   "  C,  C,  C.  &  I.  Ry.  Gen'l  Freight  F.  A., 

Pivi  Sch.  8,  1888.     E.  L.  Campbell,  per B.     This  stamps  receipts 

for  freight  but  not  for  rates.  Rate,  292  pr.  100  lbs.  Wann,  111.,  to 
Lincoln,  Neb.     Guaranteed  by  Western  road.") 

which  the  C,  C,  C.  &  I.  R}'.  agrees  to  transport  with  as  reasonable 
despatch  as  its  general  business  will  permit  to  destination,  if  on  its 
road,  or  otherwise  to  the  place  on  its  road  where  the  same  is  to  be 
delivered  to  any  connecting  carrier,  and  there  deliver  to  the  consignee 
or  to  such  connecting  carrier  upon  the  following  terms  and  conditions, 
which  are  hereby  agreed  to  by  the  shipper,  and  by  him  accepted  as 
just  and  reasonable,  and  which  are  for  the  benefit  of  every  one  over 
whose  line  said  goods  are  transported  : 

*'  1st.  Neither  this  compan}',  nor  an}'  other  carrier  receiving  said 
property  to  carry  on  its  route  to  destination,  is  bound  to  carry  the 
same  b}-  anj'  particular  train,  or  in  time  for  any  particular  market,  and 
any  carrier  in  forwarding  said  property  from  the  point  where  it  leaves 
its  line  is  to  be  held  as  a  forwarder  only. 

"  2d.  Neither  this  company  nor  any  sucii  other  carrier  shall  be 
liable  for  any  loss  of  or  damage  to  said  property  b}'  dangers  or  acci- 
dent incident  to  railroad  transportation,  or  by  fires  or  floods  while  at 

1  This  case  is  abridged. — Ed. 


488  CHICAGO,   B.   &   Q.   R.   CO.   V.    GUSTIN. 

depots,  stations,  j'ards,  landings,  warehouses,  or  in  transit.  And  said 
property  is  to  be  carried  at  owner's  risli  of  leakage,  breakage,  cliafing, 
loss  in  weight,  or  loss  or  damage  caused  by  changes  in  weather,  or  b}' 
lieat,  frost,  wet,  or  decay,  and  if  an}-  portion  of  its  route  to  destination 
is  by  water,  of  all  damages  incident  to  navigation. 

"3d.  Responsibility  of  any  carrier  shall  cease  as  soon  as  said 
property  is  ready  for  delivery-  to  next  carrier  or  to  consignee,  and  each 
carrier  shall  be  liable  only  for  loss  or  damage  occurring  on  its  own  line, 
and  in  case  of  loss  or  damage  to  such  propert}'  for  which  an}'  carrier 
shall  be  responsible,  its  value  or  cost  at  time  and  place  of  shipment 
shall  govern  settlement  therefor,  unless  a  value  has  been  agreed  upon 
with  shipper  or  is  determined  b}'  the  classification  upon  wliich  the  rate 
is  based,  in  which  case  the  value  so  fixed  by  agreement  or  classification 
shall  govern  ;  and  any  carrier  liable  on  account  of  loss  of  or  damage 
to  such  property  shall  have  the  benefit  of  any  insurance  effected 
thereon  b}'  or  on  account  of  the  owner  or  consignee  thereof. 

"4th.  Such  property'  shall  be  subject  to  the  necessar}'  cooperage 
and  bailing  at  owner's  cost ;  and  if  the  owner  or  consignee  is  to  unload 
said  property,  the  delivering  carrier  ma}'  make  a  reasonable  charge 
per  da}'  for  the  detention  of  any  car  after  the  same  has  been  held 
twenty-four  hours  for  unloading,  and  ma}' add  such  charge  to  the  freight 
due  and  hold  said  property  subject  to  a  lien  therefor." 

This  bill  was  objected  to,  for  tlie  reason  that  there  was  no  evidence 
of  its  authenticity  and  because  the  company  could  not  bind  the  C,  B. 
&  Q.  Railway  Company.  These  objections  were  overruled  and  the  bill 
received. 

It  will  be  observed  that  the  answer  of  the  railroad  company  admits 
receiving  at  Wann,  Illinois,  a  box  of  saddlery  hardware  weighing  125 
pounds,  admits  in  effect  all  that  is  claimed  in  the  petition,  except  that 
they  do  not  wrongfully  withhold  the  same,  and  it  alleges  that  the  hard- 
ware is  a  kind  classified  as  No.  2  in  the  schedule.  There  was  no  error 
in  admitting  the  bill  of  lading,  therefore.  In  a  case  of  this  kind, 
where  the  employment  is  not  denied,  it  is  probable  that  the  bill  is  prima 
facie  admissible  in  evidence,  and  a  denial  of  its  genuineness  must  be 
made  by  the  adverse  party  to  require  proof  on  the  point,  but  it  is  un- 
necessary to  determine  that  point.  It  appears  from  the  testimony  that 
goods  are  not  infrequently  labelled  improperly.  Thus,  common  hard- 
ware in  boxes  is  placed  in  the  fourth  class,  while  saddlery  hardware  is 
classified  as  No.  2  ;  that  the  companies  have  inspectors  to  open  the 
packages  and  place  the  goods  in  the  proper  class  ;  that  in  this  instance 
the  inspector  opened  the  box,  which  was  filled  with  Japanned  iron 
rings,  and,  as  Mr.  Gustin  had  been  engaged  in  the  saddlery  business, 
he  at  once  seems  to  have  assumed  that  the  rings  were  designed  for  that 
business,  and  at  once  classified  the  goods  as  No.  2,  the  freight  on 
which  is  eighteen  cents  per  hundred.  It  is  clearly  shown  that  the  rings 
are  a  new  patent  designed  for  a  neck  yoke  for  horses,  and  in  no  way 


PHILLIPS   V.    SOUTHEEN   RAILWAY.  489 

connected  with  saddlery  hardware.  Upon  this  point  there  is  practical!}' 
no  dispute,  so  that  the  classification  No.  4  is  correct,  and  the  rates  as 
shown  by  the  schedule  are  less  than  sixty-two  cents  per  hundred,  and 
as  Mr.  Gustin  had  offered  to  pay  that  sum,  he  was  entitled  to  recover. 
There  is  no  error  in  the  record,  and  the  judgment  is 

Affirmed. 
The  other  judges  concur.^ 


PHILLIPS    V.   SOUTHERN   RAILWAY. 
Supreme  Court  of  North  Carolina,  1899. 

[124  iV.  C.  123.2] 

FuRCHES,  J.  On  the  loth  of  December,  1896,  the  plaintiff.  Intending 
to  take  the  next  train  on  defendant's  road  to  Hot  Springs,  in  Madison 
County,  entered  the  defendant's  waiting-room  at  Asheville  about  eight 
o'clock  at  night,  with  the  intention  of  remaining  there  until  the  depar- 
ture of  the  next  train  on  defendant's  road  for  Hot  Springs,  which  would 
leave  at  1.20  o'clock  of  the  next  morning.  He  was  informed  b}-  de- 
fendant's agent,  in  charge  of  the  waiting-room,  that  according  to  the 
rules  of  the  company,  she  must  close  the  room  and  that  he  would  have 
to  get  out.     The  plaintiff  protested  against  this,  and  refused  to  leave. 

But  when  the  clerk  of  defendant's  baggage  department  (Graham) 
came  and  told  him  that  he  could  not  staj-,  and  made  demonstrations  as 
if  he  would  put  him  out,  he  left ;  that  he  had  no  place  to  go  where  he 
could  be  comfortable  ;  that  the  night  was  cold  ;  that  he  was  thinly  clad 
and  suffered  very  much  from  this  exposure,  and  took  violent  cold  there- 
from, which  ran  into  a  spell  of  sickness  from  which  his  health  has  been 
permanentl}'  injured. 

It  was  in  evidence,  and  not  disputed,  that  the  rules  of  defendant  com- 
l)an\-  required  the  waiting-room  to  be  closed  after  the  departure  of 
defendant's  train,  and  to  remain  closed  until  thirty  minutes  before  the 
departure  of  its  next  train;  that,  under  this  rule  of  the  defendant,  it 
was  time  to  close  the  waiting-room  when  the  plaintiff  was  ordered  to 
leave  the  room,  and  he  was  informed  that  it  would  not  be  opened  again 
until  thirty  minutes  before  the  departure  of  defendant's  next  train  at 
L  20  o'clock  of  the  next  morning.  .   .  . 

So  the  only  question  that  remains  is  as  to  whether  the  defendant  had 
the  right  to  establish  the  rule  for  closing  the  waiting-room,  and  was 
the  rule  a  reasonable  one  ?  And  we  are  of  the  opinion  that  the  de- 
fendant had  the  right  to  establish  the  rule  and  that  it  was  a  reason- 
able one.     Webster  v.  Fitchburg  R.  Co.,  161  Mass.  298  ;  34  At.  Rep. 

1   Compare :  Savannah  Co.  v.  Bundick,  94  Ga.  775  ;  Smith  i;.  Findley,  34  Kans.  316  ; 
■Wellington  v.  R.  R.,  107  Mass.  582;  Express  Co.  i-.  Koerner,  65  Minn.  540;  Baldwin 
V.  S.  S.  Co.,  11  Hun,  496 ;  New  York  Co.  v.  Gallaher,  79  Tex.  685.  —Ed. 
2  Part  of  the  opinion  is  omitted.  —  Ed. 


490  OENE    V.   BARSTOW. 

157 ;  1  Elliott  on  Railroads,  sections  199  and  200 ;  4  Elliott  on  Rail- 
roads, section  1579. 

The  rule  would  probably  be  different  in  the  case  of  through  passen- 
gers, and  in  the  case  of  delayed  trains  ;  but  if  so,  these  would  be 
exceptions  and  not  the  rule. 

Waiting-rooms  are  not  a  part  of  the  ordinary  duties  pertaining  to  the 
rights  of  passengers  and  common  carriers.  But  the}-  are  established  by 
carriers  as  ancillaries  to  the  business  of  carriers  and  for  tlie  accommo- 
dation of  passengers,  and  not  as  a  place  of  lodging  and  accommodation 
for  those  who  are  not  passengers.  This  being  so,  it  must  be  that  the 
carrier  should  have  a  reasonable  control  over  the  same,  or  it  could  not 
protect  its  passengers  in  said  rooms.     There  is  error. 

JVew  trial. 


ORNE   V.   BARSTOW. 
Supreme  Judicial  Court  of  Massachusetts,  1900. 

[175  Mass.  193.] 

Holmes,  C.  J.  This  is  a  petition  to  enforce  a  mechanic's  lien.  At 
the  trial  the  cop}'  of  the  statement  put  in  evidence  by  the  petitioners 
bore  the  indorsement  "  A  copy  of  mechanic's  lien,  filed  with  Middlesex 
So.  District  Registry  of  Deeds,  Feb.  14,  1898,  at  8  h.  0  m.  a.  m. 
Recorded  book  2633,  page  521.  Attest:  Thos.  Leighton,  Jr.,  Ass't 
Register."  It  is  agreed  that  this  was  not  within  the  thirty  days  allowed 
for  filing  such  statements  by  Pub.  Sts.  c.  191,  §  6,  but  evidence  was 
admitted  which  showed  the  following  facts.  The  office  hours  of  the 
registry  on  Saturdays  were  from  8  a.  m.  to  1  p.  m.  On  Saturday, 
February  12,  which  was  within  the  thirty  days,  between  half-past  one 
and  two,  p.  m.,  the  petitioners'  attorney,  having  got  into  the  oflSce  after 
it  was  closed,  tendered  the  statement  and  the  fee  to  the  register,  who 
was  there  but  refused  to  receive  it.  By  the  register's  suggestion  the 
attorney  thereupon  put  the  statement  and  fee  into  an  envelope  which 
the  register  gave  him,  was  escorted  to  the  door  by  a  clerk,  and  after 
the  door  was  closed  pushed  the  envelo[)e  under  the  door.  He  was 
watched  through  a  glass  panel  by  the  clerk,  and  the  fair  inference  is 
that  the  clerk  took  the  envelope,  which  was  on  the  register's  desk  on 
Monday  morning.  The  court  ruled  not  only  that  the  certificate  of  the 
register  as  to  the  time  of  filing  was  conclusive,  but  also  that  what  was 
done  by  the  attorney  did  not  amount  to  a  filing;  and  the  case  is  here 
on  exceptions. 

There  is  no  doubt  that  the  register's  certificate  was  evidence,  if  not 
conclusive  evidence,  of  the  time  of  filing.  Wood  v.  Simons,  110  Mass. 
116;  Fuller  v.  Cunningham,  105  Mass.  442.     The  statement  was  left 


OENE   V.   BARSTOW.  491 

for  record.  Pub.  Sts.  c.  191,  §  7.  The  register  was  required  to  note 
the  time  of  reception,  and  every  instrument  is  considered  as  recorded 
at  the  time  so  noted.  Pub.  Sts.  c.  24,  §  15.  The  register  is  also  to 
certify  the  time  upon  the  instrument.  Pub.  Sts.  c.  24,  §  21.  We  do 
not  think  that  the  statutes  mean  to  distinguish  between  receiving,  re- 
cording, and  filing,  so  far  as  this  case  is  concerned.  We  perceive  no 
inconsistency  in  principle  with  these  general  provisions  in  Pub.  Sts. 
c.  147,  §  12,  and  c.  192,  §  4,  by  which  certain  instruments  are  to  bo 
considered  as  recorded  at  the  time  when  left  for  the  purpose  in  the 
clerk's  office.  It  is  assumed  that  the  time  of  leaving  and  the  time 
noted  are  the  same,  or,  in  other  words,  that  the  clerk  will  note  the 
true  time.  But  the  last  named  sections  refer  to  different  instru- 
ments and  to  city  or  town  clerks,  and  do  not  affect  the  present  case. 
Neither  do  we  see  anything  adverse  to  the  conclusiveness  of  the  regis- 
ter's certificate  in  decisions  that  a  court  is  not  prevented  b}-  its  own 
record,  which  it  has  power  to  correct  if  erroneous,  from  looking  into 
the  facts  as  to  when  a  petition  was  filed.  Goulding  v.  Smith,  114 
Mass.  487,  489;  Clemens  Electric^  Manuf.  Co.  u  Walton,  1G8 
Mass.  304. 

But  in  the  case  at  bar  the  parties  very  properl}'  avoided  raising  a 
question  as  to  the  conduct  of  a  register  who  meant  to  do  his  dut}- 
(Tracy  v.  Jenks,  15  Pick.  465,  468)  by  going  into  the  facts,  and  the 
judge  ruled  upon  them  irrespective  of  the  question  whether  the  cer- 
tificate was  conclusive  as  it  stood.  If  the  judge  had  ruled  that  the 
facts  did  amount  to  a  filing,  and  the  ruling  had  been  accepted  by  the 
parties,  undoubtedh'  the  register  would  have  amended  his  certificate  so 
as  to  avoid  concluding  the  petitioners  under  the  other  ruling  of  the 
judge.  At  least  there  was  such  a  possibility  that  the  register  might 
amend  that  we  cannot  treat  the  ruling  as  immaterial  on  the  ground 
that,  however  the  facts  might  be,  the  petitioners  could  not  contradict 
the  register's  certificate  as  to  the  time.  It  was  not  argued  that  the 
register  would  not  have  power  to  amend  under  the  same  conditions  as 
those  on  which  other  officers  ma}'  amend  records.  See  Baldwin  v. 
Marshall,  2  Humph.  116;  Sellers  v.  Sellers,  98  N.  C.  13,  18,  19. 

We  are  of  opinion  that,  on  the  facts  proved,  the  statement  was  filed 
on  Saturday  afternoon.  W^e  shall  go  no  further  in  our  decision  than 
this  case  requires.  We  shall  not  undertake  to  decide  whether  the  reg- 
ister had  a  right,  under  Pub.  Sts.  c  24,  §  12,  to  close  his  office  as  eaily 
as  he  did,  so  far  as  to  exonerate  himself  from  liability  had  some  one 
come  to  the  office  and  found  it  empty.  But  he  was  there.  With  his 
knowledge  and  assent  the  instrument  was  left  within  the  enclosure  of 
the  office  or  its  approach,  for  the  purpose  of  being  recorded.  It  was 
taken  into  his  custody  by  his  servants  or  agents.  He  undeitook  to 
refuse  legal  effect  to  the  deposit,  it  is  true,  but  in  our  opinion  tliat  was 
beyond  his  power.  It  was  the  petitioners'  right,  if  the}'  found  the  reg- 
ister in  his  office  on  a  week  day  and  during  daylight,  to  insist  on  their 
statement  being  filed  forthwith,  and  it  is  no  answer  to  say  that  the 


492  ORNE   V.   BARSTOW. 

register  might  have  been  absent  without  liabilit}'  under  the  law.  As 
the  petitioners  did  all  that  the}'  could  do,  or  were  bound  to  do,  the 
register's  conduct  did  not  affect  their  rights.  See  Sykes  v.  Keating, 
118  Mass.  517,  519  ;  Watkins  v.  Bugge,  56  Neb.  615  ;  Dodge  v.  Potter, 
18  Barb.  193,  202. 

Exceptions  sustained. 


MAYHEW   V.   EAMES.  493 


Section  2.     To  Enter  into  Contracts. 

MAYHEW   V.    EAMES. 

King's  Bench,  1825. 

[3  B.Sr  C.  601.] 

This  was  an  action  against  the  defendants,  as  carriers,  brought  to 
recover  the  value  of  a  parcel  of  countr}'  bank  notes  sent  b}'  their  coach 
from  Downham,  in  the  count}'  of  Norfolk,  to  London.  At  the  trial 
before  Abbott,  C.  J.,  at  the  London  sittings  after  last  term,  the  follow- 
ing appeared  to  be  the  facts  of  the  case.  The  plaintiffs  were  silk  ware- 
housemen, residing  in  London,  and  employed  one  Hughes  as  their 
agent  to  collect  their  debts  in  the  countrj-.  The  defendants  were  coach 
proprietors  and  owners  of  a  coach  running  from  Lj'nn  to  the  White 
Horse,  Fetter  Lane,  London.  On  the  10th  of  February,  1824,  Hughes, 
the  agent  of  the  plaintiffs,  having  collected,  in  pa3'ment  of  debts  due  to 
them,  provincial  banker's  notes  to  the  amount  of  £87,  inclosed  them  in 
a  parcel,  and  upon  the  parcel  he  wrote  the  word  "  Mourning,"  and 
addressed  it  to  the  plaintiffs,  "Foster  Lane,  Cheapside,  London." 
Hughes  then  delivered  the  parcel  to  one  Wright,  at  whose  house  in 
Downham  the  coach  stopped  to  change  horses,  and  he  paid  for  the  car- 
riage l5.  2d.,  and  Wright  gave  him  a  receipt  for  the  parcel.  When 
the  coach  arrived,  Wright  delivered  the  parcel  to  the  coachman,  and  it 
was  afterwards  lost.  For  the  defendant  it  was  proved,  that  the  plain- 
tiffs had  frequently  received  parcels  before  the  10th  of  February  coming 
by  coaclies  to  the  White  Horse,  Fetter  Lane,  London,  and  the  porter 
who  delivered  such  parcels  proved  that  he  had  always  delivered  with 
them  a  ticket  containing  the  amount  of  the  charge  for  carriage  and 
porterage,  and  a  printed  notice,  "  that  the  proprietors  of  carriages 
which  set  out  from  that  office  would  not  hold  themselves  accountable 
for  any  passenger's  luggage,  truss,  parcel,  or  an}'  package  whatever 
above  the  value  of  £5  if  lost  or  damaged,  unless  the  same  were  entered 
as  such  and  paid  for  accordingly  when  delivered  there,  or  to  their 
agents  in  town  or  country ;  nor  would  they  be  accountable  for  any 
glass,  china,  plate,  watehes,  writings,  cash,  bank  notes,  or  jewels  of 
any  description,  however  small  the  value."  But  there'was  no  evidence 
to  show  that  Hughes  had  any  knowledge  of  such  notice  at  the  time 
when  he  delivered  the  parcel  to  Wright.  Upon  this  evidence  the  Lord 
Chief  Justice  was  of  opinion  that  as  the  plaintiffs  knew  that  the  de- 
fendants were  not  accountable  for  bank  notes,  they  ought  to  have 
desired  their  agent  not  to  send  parcels  of  that  description  by  any  coach 
of  the  defendants,  and  the  plaintiffs  were  nonsuited,  with  liberty  to 
them  to  move  to  enter  a  verdict  for  £87. 


494  carriers'  act. 

Per  Curiam.  At  common  law,  carriers  are  responsible  for  the  value 
of  the  goods  theyundertake  to  carr}-,  but  thej'  may  limit  their  respon- 
sibility b}'  making  a  special  contract,  and  that  is  usually-  done  b}-  giving 
public  notice  that  the}'  will  not  be  accountable  for  parcels  of  a  given 
description.  In  order,  however,  to  show  in  an}'  particular  case  that 
they  are  not  subject  to  the  common-law  responsibility,  they  must  prove 
that  the  party  sending  the  goods  had  knowledge  of  the  notice.  But 
the  knowledge  of  the  principal  is  the  knowledge  of  the  agent.  Now 
here  the  agent  was  employed  to  transmit  bank  notes,  which  are  the 
subject  of  the  present  action,  and  it  appears  that  the  plaintiffs  them- 
selves had  knowledge  that  the  defendants  would  not  be  responsible  for 
bank  notes,  because  it  is  in  evidence  that  man}'  parcels  came  to  them 
from  the  defendants,  and  that  the  porter  delivered  together  with  such 
parcels  a  printed  paper  containing  a  notice  that  "the  proprietors  of 
carriages  setting  out  from  the  White  Horse,  Fetter  Lane,  would  not 
hold  themselves  accountable  for  any  glass,  china,  plate,  watches, 
writings,  cash,  bank  notes,  or  jewels  of  any  description,  however  small 
the  value."  Now  when  a  parcel  came  to  the  plaintiffs  in  this  way 
before,  they  must  have  seen  the  notice,  because  it  was  contained  in 
the  same  paper  which  they  must  have  looked  at  in  order  to  ascertain 
the  amount  of  the  charge  for  carriage  and  porterage  which  they  had  to 
pay.  Then  if  the  plaintiffs  knew  that  parcels  would  not  be  accounted 
for  if  they  contained  bank  notes,  it  was  their  duty  to  tell  their  agent 
not  to  send  any  such  parcels  by  any  of  the  coaches  coming  to  the  White 
Horse,  Fetter  Lane.  But  as  the  plaintiffs  suffered  their  agent  to  send 
notes  by  those  coaches,  we  think  that  knowledge  of  the  notice  having 
been  brought  home  to  the  plaintiffs,  the  carrier  is  thereby  protected 
from  such  loss,  although  the  parcel  was  sent  by  an  agent. 

Rule  refused} 


CARRIERS'  ACT,  11  Geo.  IV.  &  1  Wil.  IV.,  c.  68. 

§  1.  ...  No  mail  contractor,  stage-coach  proprietor,  or  other 
common  carrier  by  land  for  hire  shall  be  liable  for  the  loss  of  or  injury  to 
any  article  or  articles  or  property  of  the  descriptions  following  .  .  .  con- 
tained in  any  parcel  or  package  .  .  .  when  the  value  of  such  article 
or  articles  or  property  aforesaid  contained  in  such  parcel  or  package 
shall  exceed  the  sum  of  ten  pounds,  unless  at  the  time  of  the  delivery 
thereof  .  .  .  the  value  and  nature  of  such  article  or  articles  or  property 
shall  have  been  declared  by  the  person  or  persons  sending  or  delivering 

1  "  The  doctrine  of  notice  was  never  known  until  the  case  of  Forward  v.  I'ittard, 
1  T.  R.  27,  which  I  nrtjued  many  years  ago.  Notice  does  not  constitute  a  special 
contract ;  if  it  did,  it  must  be  shown  on  the  record ;  it  only  arises  in  defence  of  the 
carrier,  and  here  it  ia  rebutted  by  proof  of  positive  negligence.  I  lament  that  the 
doctrine  of  notice  was  ever  introiluced  into  Westminster  UalL"  Bohkough,  J.,  in 
Smith  V.  Home,  8  Tauut.  144  (1818).  —  Ed. 


WALKER  V.   YORK   AND   NORTH   MIDLAND   RAILWAY.  495 

the  same,  and  such  increased  charge  as  hereinafter  mentioned,  or  an 
engagement  to  paj-  the  same,  be  accepted  by  the  person  receiving  such 
parcel  or  package. 

§  4.  ...  No  public  notice  or  declaration  heretofore  made  or  hear- 
after  to  be  made  shall  be  deemed  or  construed  to  limit  or  in  an}'  wise 
affect  the  liability  at  common  law  of  an\'  such  mail  contractors,  stage- 
coach proprietors,  or  other  public  common  carriers  as  aforesaid,  for  or 
in  respect  of  an}'  articles  or  goods  to  be  carried  and  convened  by  them  ; 
but  that  all  and  ever}-  sucli  mail  contractor,  stage-coach  proprietor,  and 
common  carrier  as  aforesaid  shall  ...  be  liable,  as  at  the  common 
law,  to  answer  for  the  loss  or  any  injur}'  to  any  articles  and  goods 
in  respect  whereof  they  may  not  be  entitled  to  the  benefit  of  this  act, 
any  public  notice  or  declaration  by  them  made  and  given  contrary 
thereto,  or  in  anywise  limiting  sucii  liability,  notwithstanding. 

§  6.  ...  Nothing  in  this  act  contained  shall  extend  or  be  construed 
to  annul  or  in  anywise  affect  any  special  contract  between  such  mail 
carrier,  stage-coach  proprietor,  or  common  carrier  and  any  other  par- 
ties, for  the  conveyance  of  goods  and  merchandises. 


WALKER  V.  YORK   AND   NORTH   MIDLAND   RAILWAY. 
Queen's  Bench,   1853. 

[2  E.  Sr  B.  750.] 

The  cause  was  first  tried  before  Lord  Campbell,  C.  J.,  at  the  sittings 
in  London  after  last  Hilary  Term,  when  a  general  verdict  passed  for 
the  plaintiff:  but  a  new  trial  was  granted,  in  order  that  it  might  be 
ascertained  whether  a  notice  hereafter  mentioned  had  been  served  on 
the  plaintiff  or  not :  the  defendants  were  to  admit  the  rest  of  the  plain- 
tiff's case,  and  the  amount  of  damages. 

On  the  second  trial,  before  Coleridge,  J.,  at  the  sittings  in  London 
during  last  Trinity  Term,  the  following  facts  were  agreed  on  by  both 
sides.  The  plaintiff  was  a  fish  merchant  at  Scarborough.  There  is 
railway  communication  from  Scarborough  to  Manchester  and  to  Lon- 
don. The  terminus  at  Scarborough  is  part  of  tlie  defendants'  railway, 
which  communicates  with  other  railways  leading  to  Manchester  and 
London.  The  defendants,  as  is  usual,  collect  goods  at  their  own  ter- 
minus and  forward  them  through  the  connecting  lines  to  their  destina- 
tion ;  and  it  was  admitted  that  the  fish  in  question  had  been  sent  by 
defendants'  line,  and  not  delivered  in  due  time,  to  the  damage  of  plain- 
tiff. The  learned  judge  ruled  that,  after  these  admissions,  made  in 
obedience  to  the  rule  granting  the  new  trial,  the  onus  lay  on  the  defend- 
ants ;  and  their  counsel  began.  The  parts  of  the  evidence,  material  to 
the  question  discussed  in  banc,  were  as  follows  : 


496  WALKER   V.   YORK   AND   NORTH    MIDLAND    RAILWAY. 

The  defendants  had  caused  a  large  number  of  notices  to  be  printed ; 
of  which  the  following  is  a  cop}' : 

"  York  and  North  Midland  Railway.  Notice.  Fish  Traffic.  Fish 
being  a  perishable  and  consequently  a  hazardous  article  of  traffic,  The 
York  and  North  Midland  Railway  Compan}-  hereby  give  notice  that,  on 
and  after  the  12th  April,  1852,  they  will  carry  it  at  the  reduced  rates 
at  present  charged,  or  which  may  hereafter  be  charged,  below  the  rate 
which  the  said  company  is  entitled  to  charge,  on  the  following  conditions 
only.  .  .  . 

"  2.  This  company  is  not  to  be  responsible  for  the  delivery  of  fish  in 
an}'  certain  or  reasonable  time,  nor  in  time  for  any  particular  market ; 
nor  are  they  to  be  required  to  carry  or  forward  by  any  particular  train, 
nor  are  they  to  be  responsible  for  loss  or  damage  arising  from  any 
delay  or  stoppage,  however  occasioned.   .  .  . 

"  4.  The  station  clerks  and  servants  of  the  company  have  no  author- 
ity to  alter  or  vary  these  conditions." 

A  clerk,  ordinarily  employed  for  defendants  at  York,  who  was  called 
for  defendants,  proved  that,  on  2d  September,  1852,  he  was  sent  with 
a  large  number  of  tliese  printed  notices  to  Scarborough  ;  and  at  Scar- 
borough received,  from  the  station  master  there,  a  list  of  the  fishdealers 
at  Scarborough.  He  then  went  down  to  the  sands,  where  the  fishing 
boats  were  coming  in,  and  where  consequently  many  of  the  fishdealers 
were  assembled,  and  there  served  as  many  of  them  as  he  could  with 
copies  of  the  notice.  Amongst  others,  he  served  a  person  whom  he 
believed  to  be  the  plaintiff  ;  but,  as  he  was  not  then  personally  ac- 
quainted" with  the  plaintiff,  he  could  not  speak  very  positively  to 
the  identity.  On  cross-examination  it  appeared  that  the  persons 
served  were  very  angry  ;  that  many  tore  up  the  notices  and  said  that 
they  would  not  be  bound  by  them  ;  and  that  there  was  considerable 
disturbance.  The  station  master  at  Scarborough  gave  evidence  that, 
on  the  3d  September,  he  saw  the  plaintiff,  who  said  to  him:  ""What 
is  the  use  of  sending  that  old  fellow  to  serve  these  notices?  they 
are  of  no  use."  The  fish,  the  subject  of  the  first  count,  were  sent 
off  on  that  same  3d  of  September.  The  plaintiff  himself,  who  was 
called  as  a  witness,  denied  having  been  personally  served  with  the 
notice,  and  denied  having  ever  consented  to  be  bound  by  its  terms. 
The  learned  judge  left  it  to  the  jury  to  say  whether  there  was  a  spe- 
cial contract  or  not.  He  told  them  that  the  first  question  was  one  of 
fact,  whether  the  plaintiff  was  served  with  the  notice  ;  and  that,  if  they 
were  of  that  opinion,  they  might  infer  a  special  contract.  And  he  ad- 
vised them  to  draw  that  inference  from  the  receipt  of  the  notice  and 
the  subsequent  sending  of  the  goods,  unless,  in  the  interim,  tlie  plaintiff 
had  unambiguously  refused  to  deliver  the  goods  on  the  terms  of  the 
notice,  and  the  defendants  had  acquiesced  in  that  refusal.  The  jury 
found  that  there  had  been  a  service  of  the  notice,  and  that  there  was  a 
special  contract.     The  verdict  was  entered  for  the  defendants  on  the 


WALKER   V.   YORK   AND    NORTH    MIDLAND    RAILWAY.  497 

second  and  third  issues,  and  the  corresponding  issues  on  the  pleas  to 
the  other  counts. 

^r.  Chambers,  in  last  Trinity  Term,  obtained  a  rule  fiisi  for  a  new 
trial,  on  the  ground  of  misdirection.^ 

WiGHTMAN,  J.  The  question  is,  Whether  there  was  any  evidence 
from  which  the  jury  might  find  a  special  contract.  It  is  not  raised  quite 
in  that  form  ;  but  that  is  the  substantial  question.  The  defendants 
had  served  the  plaintiff  with  a  notice  that,  in  consideration  of  their 
carrying  fish  at  reduced  charges,  they  would  require  their  customers  to 
agree  to  certain  conditions  on  which,  and  on  which  onl}',  they  would 
carr}'  fish  ;  and  the}'  also  state  in  tiie  notice  that  no  servant  of  theirs 
has  power  to  alter  these  terms.  The  question  is,  Whether  the  fish  in 
question  was  received  under  a  contract  to  carry  on  these  terms.  Now 
the  plaintiff  did  not  assent  in  express  words  to  these  conditions :  on 
the  contrary,  he  objected  to  them  ;  but  still,  for  all  that,  he  sent  the 
goods,  knowing  that  no  servant  had  power  to  alter  the  conditions,  and 
that  they  would  be  accepted  on  those  conditions  only  :  and  I  think  he 
must  be  taken  to  have  sent  them  on  these  terms  unless  there  was  some- 
thing in  the  law  to  prevent  the  conditions  from  binding.  Mr.  Cowling 
contends  that  there  is  such  a  law,  and  that  statute  11  Geo.  IV.  &  1  Wil. 
IV.  c.  68,  s.  4,  prevents  this  notice  from  aifecting  the  liability  of  the 
defendants  as  carriers  :  but  1  do  not  think  that  such  is  the  effect  of  the 
act.  It  is  confined,  I  think,  to  public  notices,  such  as  were  ver}'  com- 
mon before  the  act ;  notices  addressed  to  the  public  at  large,  raising  a 
question,  in  ever}'  case,  whether  the  notice  was  brought  home  to  the 
particular  person  ;  I  do  not  think  it  applicable  to  a  notice  specifically 
delivered  to  a  particular  person  to  form  the  basis  of  a  special  contract 
witli  him.  The  judge  told  the  jury  that,  if  such  a  notice  was  specifi- 
cally delivered  to  the  plaintiff,  unless  it  could  be  shown  that  ht  dis- 
sented from  those  terms,  and  the  defendants  acquiesced  in  his  dissent, 
they  ought  to  infer  that  the  plaintiff,  persisting  in  sending  the  goods, 
assented  to  their  being  taken  on  the  terms.  I  think  so  too.  If  a  man 
is  told  that  goods  will  not  be  received  except  on  certain  terras,  and 
notwithstanding  this  he  will  send  the  goods,  I  think  that  he  must  be 
taken  to  agree  that  they  shall  be  taken  on  these  terms.  Statute  11 
Geo.  IV.  &  1  Wil.  IV.  c.  68,  s.  6,  expressly  saves  special  contracts  ;  and 
I  think  Mr.  Cowling  hardly  contended  that  a  special  contract  might  not 
be  proved  by  a  letter  sent  to  an  individual  addressed  to  him,  and  a 
subsequent  delivery  of  the  goods,  though,  if  such  a  notice  is  in  the 
shape  of  a  circular,  he  says  it  is  within  section  4.  But  I  tiiink  section 
4  is  limited  to  public  notices,  advertised  or  put  up  in  an  office. 

1  The  statement  of  facts  has  been  abridged  and  arguments  of  counsel  and  concur- 
ring opinions  of  Lord  Campbell,  C.  J.,  and  Coleridge,  J.,  have  been  omitted.  —  Ed. 

32 


498  RAILROAD  V.   LOCKWOOD. 


RAILWAY  AND   CANAL  TRAFFIC   ACT  OF   1854, 
17  &  18  Vict.  c.  31. 

§  7.  Evert  such  company  as  aforesaid  [railway  and  canal  com- 
panies] shall  be  liable  for  the  loss  of  or  for  any  injury  done  to  any 
horses,  cattle,  or  other  animals,  or  to  any  articles,  goods,  or  things,  in 
the  receiving,  forwarding,  or  delivering  thereof,  occasioned  by  the 
neglect  or  default  of  such  company  or  its  servants,  notwithstanding 
any  notice,  condition,  or  declaration  made  and  given  b}'  such  com- 
pany contrary  thereto,  or  in  anywise  limiting  such  liability ;  ever}' 
such  notice,  condition,  or  declaration  being  hereby  declared  to  be  null 
and  void  ;  provided  always,  that  nothing  herein  contained  shall  be 
construed  to  prevent  the  said  companies  from  making  such  conditions 
with  respect  to  the  receiving,  forwarding,  and  delivering  of  any  of  the 
said  animals,  articles,  goods,  or  things,  as  shall  be  adjudged  by  the 
court  or  judge  before  whom  any  question  relating  thereto  shall  be 
tried  to  be  just  and  reasonable :  provided  always,  that  no  greater 
damages  shall  be  recovered  for  the  loss  of  or  for  any  injury  done  to 
an}'  of  such  animals,  beyond  the  sums  hereinafter  mentioned  ;  (that 
is  to  sa}'),  for  any  horse  fift}'  pounds;  for  any  neat  cattle,  per  head, 
fifteen  pounds  ;  for  an}-  sheep  or  pigs,  per  head,  two  pounds  ;  unless 
the  person  sending  or  delivering  the  same  to  such  company  shall,  at 
the  time  of  such  deliver}',  have  declared  them  to  be  res[)ectively  of 
higher  value  than  as  above  mentioned ;  in  which  case  it  shall  be  lawful 
for  such  company  to  demand  and  receive  by  way  of  compensation  for 
the  increased  risk  and  care  thereby  occasioned  a  reasonable  percent- 
age upon  the  excess  of  value  so  declared.  .  .  .  Provided  also,  that  no 
special  contract  between  such  company  and  any  other  parties  respect- 
ing the  receiving,  forwarding,  or  delivering  of  any  animals,  articles, 
goods,  or  things  as  aforesaid  shall  be  binding  upon  or  affect  any  such 
party  unless  the  same  be  signed  by  him  or  by  the  person  delivering 
such  animals,  articles,  goods,  or  things  respectively  for  carriage. 


RAILROAD   V.  LOCKWOOD. 
Supreme  Court  of  the  United  States,  1873. 

[17   Wall.  35'.] 

Error  to  the  Circuit  Court  for  the  Southern  District  of  New  York  ; 
the  case  being  thus  :  — 

Lockwood,  a  drover,  was  injured  whilst  travelling  on  a  stock  train 
of  the  New  York  Central  Railroad  Company,  proceeding  from  Buffalo 
to  Albany,  and  brought  this  suit  to  recover  damages  for  the  injury. 
He  had  cattle  in  the  train,  and  had  been  required,  at  Buffalo,  to  sign 


RAILROAD   V.   LOCKWOOD.  499 

an  agreement  to  attend  to  the  loading,  transporting,  and  unloading  of 
them,  and  to  talce  all  risk  of  injury  to  them  and  of  personal  injury  to 
himself,  or  to  whomsoever  went  with  the  cattle  ;  and  he  received  what 
is  called  a  drover's  pass  ;  that  is  to  sa}',  a  pass  certifying  that  he  had 
shipped  sufficient  stock  to  pass  free  to  Albany,  but  declaring  that  the 
acceptance  of  the  pass  was  to  be  considered  a  waiver  of  all  claims  for 
damages  or  injuries  received  on  the  train.  The  agreement  stated  its 
consideration  to  be  the  carrying  of  the  plaintiff's  cattle  at  less  than 
tariff  rates.  It  was  shown  on  the  trial,  that  these  rates  were  about 
three  times  the  ordinary  rates  charged,  and  that  no  drover  had  cattle 
carried  on  those  terms ;  but  that  all  signed  similar  agreements  to  that 
which  was  signed  b^'  the  plaintiff,  and  received  similar  passes.  Evi- 
dence was  given  on  the  trial  tending  to  show  that  the  injury  complained 
of  was  sustained  in  consequence  of  negligence  on  the  part  of  the  de- 
fendants or  their  servants,  but  they  insisted  that  the^'  were  exempted 
by  the  terms  of  the  contract  from  responsibilit}-  for  all  accidents,  in- 
cluding those  occurring  from  negligence,  at  least  the  ordinary  negli- 
gence of  their  servants;  and  requested  the  judge  so  to  charge.  This 
he  refused,  and  charged  that  if  the  jury  were  satisfied  that  the  injury 
occurred  without  an}'  negligence  on  tlie  part  of  the  plaintiff,  and  that 
the  negligence  of  the  defendants  caused  the  injury,  they  must  find  for 
the  plaintiff,  which  they  did.  Judgment  being  entered  accordingly,  the 
railroad  company  took  this  writ  of  error. 

Bradley,  J.^  It  may  be  assumed  in  limine,  that  the  case  was  one 
of  carriage  for  hire ;  for  though  the  pass  certifies  that  the  plaintiff  was 
entitled  to  pass  free,  j'et  his  passage  was  one  of  the  mutual  terms  of 
the  arrangement  for  carr3'ing  his  cattle.  The  question  is,  therefore, 
distinctly  raised,  whether  a  railroad  company  carrying  passengers  for 
hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own  or  their 
servants'  negligence  in  reference  to  such  carriage. 

As  the  duties  and  responsibilities  of  public  carriers  were  prescribed 
by  public  policy,  it  has  been  seriously  doubted  whether  the  courts  did 
wisely  in  allowing  that  poUcy  to  be  departed  from  without  legislative 
interference,  by  which  needed  modifications  could  have  been  intro- 
duced into  the  law.  But  the  great  hardship  on  the  carrier  in  certain 
special  cases,  where  goods  of  great  value  or  subject  to  extra  risk  were 
delivered  to  him  without  notice  of  their  character,  and  where  losses 
happened  b}-  sheer  accident  without  any  possibility  of  fraud  or  collu- 
sion on  his  part,  such  as  by  collisions  at  sea,  accidental  fire,  &c.,  led 
to  a  relaxation  of  the  rule  to  the  extent  of  authorizing  certain  exemp- 
tions from  liability  in  such  cases  to  be  provided  for,  either  by  public 
notice  brought  home  to  tlie  owners  of  the  goods,  or  by  inserting 
exemptions  from  liability  in  the  bill  of  lading,  or  other  contract  of 
carriage.  A  modification  of  the  strict  rule  of  responsibility,  exempting 
the  carrier  from  liability  for  accidental  losses,  where  it  can  be  safely 

1  Part  of  the  opiuiou  is  omitted. — £o. 


500  RAILROAD   V.    LOCKWOOD. 

done,  enables  the  carrying  interest  to  reduce  its  rates  of  compensation  ; 
thus  proportionally  rc'lie\ing  the  transportation  of  produce  and  mer- 
chandise from  some  of  the  burden  with  whicli  it  is  loaded. 

The  question  is,  whether  such  modification  of  responsibility  by  notice 
or  special  contract  may  not  be  carried  beyond  legitimate  bounds,  and 
introduce  evils  against  which  it  was  the  direct  policy  of  the  law  to  guard  ; 
whether,  for  example,  a  modification  which  gives  license  and  immunity 
to  negligence  and  carelessness  on  the  part  of  a  public  carrier  or  his 
servants,  is  not  so  evidently  repugnant  to  that  policy  as  to  be  alto- 
gether null  and  void  ;  or,  at  least  null  and  void  under  certain  circum- 
stances. .  .  . 

It  is  contended  that  though  a  carrier  may  not  stii)ulate  for  his  own 
negligence,  there  is  no  good  reason  why  he  should  not  be  permitted  to 
stipulate  for  immunity  for  the  negligence  of  his  servants,  over  whose 
actions,  in  his  absence,  he  can  exercise  no  control.  If  we  advert  for  a 
moment  to  the  fundamental  principles  on  which  the  law  of  common 
carriers  is  founded,  it  will  be  seen  that  this  objection  is  inadmis- 
sible. In  regulating  the  public  establishment  of  common  carriers, 
the  great  object  of  the  law  was  to  secure  the  utmost  care  and  diligence 
in  the  performance  of  their  important  duties  —  an  object  essential 
to  the  welfare  of  ever}-  civilized  community.  Hence  the  common-law 
rule  which  charged  the  common  carrier  as  an  insurer.  Whj'  charge 
him  as  such?  Plainly  for  the  purpose  of  raising  the  most  stringent 
motive  for  the  exercise  of  carefulness  and  fidelity  in  his  trust.  In 
regard  to  passengers  the  highest  degree  of  carefulness  and  diligence 
is  expressl}'  exacted.  In  the  one  case  the  securing  of  the  most  exact 
diligence  and  fidelit}-  underlies  the  law,  and  is  the  reason  for  it ;  iu 
the  other  it  is  directly  and  al)solutel3-  prescribed  by  the  law.  It  is  ob- 
vious, therefore,  that  if  a  carrier  stipulate  not  to  be  bound  to  the 
exercise  of  care  and  diligence,  but  to  be  at  liberty'  to  indulge  in  the 
contrary,  he  seeks  to  put  otf  the  essential  duties  of  his  employ- 
ment. And  to  assert  that  he  ma}-  do  so  seems  almost  a  contradiction 
in  terms. 

Now,  to  what  avail  does  the  law  attach  these  essential  duties  to  the 
employment  of  the  common  carrier,  if  the}-  may  be  waived  in  respect 
to  his  agents  and  servants,  especially  where  the  carrier  is  an  artificial 
being,  incapable  of  acting  except  by  agents  and  servants?  It  is  care- 
fulness and  diligence  in  performing  the  service  which  the  law  demands, 
not  an  abstract  carefulness  and  diligence  in  proprietors  and  stockhold- 
ers who  take  no  active  part  in  the  l)usiness.  To  admit  such  a  distinc- 
tion in  the  law  of  common  carriers,  as  the  business  is  now  carried  on, 
would  be  subversive  of  the  very  object  of  the  law. 

It  is  a  favorite  argument  in  the  cases  which  favor  the  extension  of 
the  carrier's  right  to  contract  for  exemption  from  liability,  that  men 
must  be  permitted  to  make  their  own  agreements,  and  that  it  is  no 
concern  of  the  public  on  what  terms  an  individual  chooses  to  have  his 
goods  carried.     Thus,  iu  Dorr  v.  The  New  Jersey  Steam  Navigation 


RAILROAD   V.   LOCKWOOD.  501 

Compan}',  1  Kern.  485,  the  court  sums  up  its  judgment  thus:  "  To 
sa}-  the  parties  have  not  a  right  to  make  their  own  contract,  and  to 
limit  the  precise  extent  of  their  own  respective  risks  and  liabilities, 
in  a  matter  no  way  affecting  the  public  morals,  or  conflicting  with  the 
public  interests,  would,  in  my  judgment,  be  an  unwarrantable  restric- 
tion upon  trade  and  commerce,  and  a  most  palpable  invasion  of  per- 
sonal right." 

Is  it  true  that  the  public  interest  is  not  affected  by  individual  contracts 
of  the  kind  referred  to?  Is  not  the  whole  business  community  affected 
by  holding  such  contracts  valid?  If  held  valid,  the  advantageous  posi- 
tion of  the  companies  exercising  the  business  of  common  carriers  is 
such  that  it  places  it  in  their  power  to  change  the  law  of  common  car- 
riers in  effect,  by  introducing  new  rules  of  obligation. 

The  carrier  and  his  customer  do  not  stand  on  a  footing  of  equalit}'. 
The  latter  is  onl}-  one  individual  of  a  million.  He  cannot  afford  to 
higgle  or  stand  out  and  seek  redress  in  the  courts.  His  business  will 
not  admit  such  a  course.  He  prefers,  rather,  to  accept  any  l)ill  of 
lading,  or  sign  an}'  paper  the  carrier  presents  ;  often,  indeed,  without 
knowing  what  the  one  or  the  other  contains.  In  most  cases  he  has  no 
alternative  but  to  do  this,  or  abandon  his  business.  In  the  present 
case,  for  example,  the  freight  agent  of  the  company  testified  that 
though  they  made  forty  or  fifty  contracts  every  week  like  that  under 
consideration,  and  had  carried  on  the  business  for  years,  no  other  ar- 
rangement than  this  was  ever  made  with  any  drover.  And  the  reason 
is  obvious  enough,  —  if  they  did  not  ac(^ept  this,  they  must  pav  tariff 
rates.  These  rates  were  seventy  cents  a  hundred  pounds  for  carrving 
from  Buffalo  to  Albanv,  and  each  horned  animal  was  rated  at  2,000 
pounds,  making  a  charge  of  $14  for  every  animal  carried,  instead  of 
the  usual  charge  of  S70  for  a  car-load  ;  being  a  difference  of  three  to 
one.  Of  course  no  drover  could  afford  to  pay  such  tariff  rates.  This 
fact  is  adverted  to  for  the  purpose  of  illustrating  how  complete'}'  in  the 
power  of  the  railroad  companies  parties  are  ;  and  how  necessar}'  it  is 
to  stand  firmly  by  those  principles  of  law  by  which  the  public  interests 
are  protected. 

If  the  customer  had  an}'  real  freedom  of  choice,  if  he  had  a  reason- 
able and  practicable  alternative,  and  if  the  employment  of  the  carrier 
were  not  a  public  one,  charging  him  with  the  duty  of  accommodating 
the  public  in  the  line  of  his  employment ;  then,  if  the  customer  choose 
to  assume  the  risk  of  negligence,  it  could  with  more  reason  be  said  to 
be  his  private  affair,  and  no  concern  of  the  public.  But  the  condition 
of  things  is  entirely  different,  and  es[)ecially  so  under  the  modified  ar- 
rangements which  tlie  carrying  trade  has  assumed.  The  business  is 
mostly  concentrated  in  a  few  powerful  corporations,  whose  position  in 
the  body  politic  enables  them  to  control  it.  They  do,  in  fact,  control 
it,  and  impose  such  conditions  upon  travel  and  transportation  as  they 
see  fit,  which  the  public  is  compelled  to  accept.  These  circumstnnces 
furnish  an  additional  argument,  if  any  were  needed,  to  show  that  the 


502  EAILROAD   V.   LOCK  WOOD. 

conditions  imposed  by  common  carriers  ought  not  to  be  adverse  (to 
sa}-  the  least)  to  the  dictates  of  pubUc  policy  and  morahty.  The  status 
and  relative  position  of  tlie  parlies  render  any  such  conditions  void. 
Contracts  of  common  carriers,  like  tliosc  of  persons  occupying  a  fidu- 
ciary character,  giving  them  a  position  in  which  the}'  can  take  undiie 
advantage  of  the  persons  witli  whom  tliev  contract,  must  rest  upon 
their  fairness  and  reasonableness.  It  was  for  the  reason  that  the  limi- 
tations of  liability  first  introduced  by  common  carriers  into  tlieir 
notices  and  bills  of  lading  were  just  and  reasonable,  that  the  courts 
sustained  them.  It  was  just  and  reasonable  that  they  should  not  be 
responsible  for  losses  happening  by  sheer  accident,  or  dangers  of  navi- 
gation that  no  human  skill  or  vigilance  could  guard  against ;  it  was 
just  and  reasonable  that  the}'  should  not  be  chargeable  for  money  or 
other  valuable  articles  liable  to  be  stolen  or  damaged,  unless  apprised 
of  their  character  or  value  ;  it  was  just  and  reasonable  that  they  should 
not  be  responsible  for  articles  liable  to  rapid  decay,  or  for  live  animals 
liable  to  get  unruly  from  fright  and  to  injure  themselves  in  that  state, 
when  such  articles  or  live  animals  became  injured  without  their  fault 
or  negligence.  And  when  any  of  these  just  and  reasonable  excuses 
were  incorporated  into  notices  or  special  contracts  assented  to  by 
their  customers,  the  law  might  well  give  effect  to  them  without  the 
violation  of  any  important  principle,  although  modifying  the  strict 
rules  of  responsibility  imposed  by  the  common  law.  The  improved 
state  of  society  and  tlie  better  administration  of  the  laws,  had  dimin- 
ished the  opportunities  of  collusion  and  bad  faith  on  the  part  of  the 
carrier,  and  rendered  less  imperative  the  a[)plication  of  the  iron  rule, 
that  he  must  be  responsible  at  all  events.  Hence,  the  exemptions 
referred  to  were  deemed  reasonable  and  proper  to  be  allowed.  But 
the  proposition  to  allow  a  public  carrier  to  abandon  altogether  his 
obligations  to  the  public,  and  to  stipulate  for  exemptions  that  are  un- 
reasonable and  improper,  amounting  to  an  abdication  of  the  essential 
duties  of  liis  employment,  would  never  have  been  entertained  by  the 
sages  of  the  law. 

Hence,  as  before  remarked,  we  regard  the  English  statute  called  the 
Railway  and  Canal  Traffic  Act,  passed  in  1854,  which  declared  void  all 
notices  and  conditions  made  by  common  carriers  except  such  as  the 
judge,  at  the  trial,  or  the  courts  should  hold  just  and  reasonable,  as 
substantially  a  return  to  the  rules  of  the  common  law.  It  would  have 
been  more  strictly  so,  perhaps,  had  the  reasonableness  of  the  contract 
been  referred  to  the  law  instead  of  the  individual  judges.  The  de- 
cisions made  for  more  than  half  a  century  before  the  courts  commenced 
the  abnormal  course  which  led  to  the  necessity  of  that  statute,  giving 
effect,  to  certain  classes  of  exemptions  stipulated  for  by  the  carrier, 
may  be  regarded  as  authorities  on  the  question  as  to  what  exemptions 
are  just  and  reasonable.  So  tlie  decisions  of  our  own  courts  are  en- 
titled to  like  effect  when  not  made  under  the  fallacious  notion  that 
every  special  contract  imposed  by  the  common  carrier  on  his  custom- 


MYNARD    V.    SYRACUSE,    BINGHAMPTON,   ETC.    RAILROAD.         503 

ers  must  be  carried  into  effect,  for  the  simple  reason  that  it  was  en- 
tered into,  without  regard  to  the  character  of  the  contract  and  the 
relative  situation  of  the  parties. 

Conceding,  therefore,  that  special  contracts,  made  b}-  common  car- 
riers with  their  customers,  limiting  their  liability,  are  good  and  valid  so 
far  as  the}-  are  just  and  reasonable  ;  to  the  extent,  for  example,  of  ex- 
cusing them  for  all  losses  happening  b}-  accident,  without  any  negli- 
gence or  fraud  on  their  part ;  when  they  ask  to  go  still  further,  and  to 
be  excused  for  negligence  —  an  excuse  so  repugnant  to  the  law  of  their 
foundation  and  to  the  public  good  —  they  have  no  longer  an}-  plea  of 
justice  or  reason  to  support  such  a  stipulation,  but  the  contrar}-.  And 
then,  the  inequalit}'  of  the  parties,  the  compulsion  under  which  the 
customer  is  placed,  and  the  obligations  of  the  carrier  to  the  public, 
operate  with  full  force  to  divest  the  transaction  of  validity. 

Judgment  affirmed} 


MYNARD  V.  SYRACUSE,  BINGHAMPTON,  AND  NEW  YORK 

RAILROAD. 

Court  of  Appeals,  New  York,  1877. 
[71  N.  Y.  180.] 

Church,  C.  J.'^  The  parties  stipulated  that  the  animal  was  lost  by 
reason  of  the  negligence  of  some  of  the  employees  of  the  defendant 
without  the  fault  of  the  plaintiff.  The  defence  rested-  solel}'  upon 
exemption  from  liabilit}-  contained  in  the  contract  of  shipment  by  which, 
for  the  consideration  of  a  reduced  rate,  the  plaintiff  agreed  to  "  release 
and  discharge  the  said  compau}-  from  all  claims,  demands,  and  liabilities 
of  every  kind  whatsoever  for  or  on  account  of,  or  connected  with,  any 
damage  or  injury  to  or  the  loss  of  said  stock,  or  an}-  portion  thereof, 
from  whatsoever  cause  arising." 

The  question  depends  upon  the  construction  to  be  given  to  this  con- 
tract, wliether  the  exemption  "  from  whatever  cause  arising,"  should 
be  taken  to  include  a  loss  accruing  by  the  negligence  of  the  defendant 
or  its  servants.  The  language  is  general  and  broad.  Taken  literally 
it  would  include  the  loss  in  question,  and  it  would  also  include  a  loss 
accruing  from  an  intentional  or  wilful  act  on  the  part  of  servants.  It 
is  conceded  that  the  latter  is  not  included.  We  must  look  at  the  lan- 
guage in  connection  with  the  circumstances  and  determine  what  was 
intended,  and  whether  the  exemption  claimed  was  within  the  contem- 
plation of  the  parties. 

1  Compare:  Merch.  D.  T.  Co.  v.  Cornforth,  3  Col.  280;  Adams  Exp.  Co.  v.  Stet- 
taners,  61  111.  184  ;  M.  S.  &  N.  I.  R.  R.  v.  Heaton,  37  Ind.  448;  Ketchum  v.  Amer. 
M.  U.  Exp.  Co  ,  52  Mo.  390  ;  Davidson  v.  Graham,  2  Oh.  St.  131 ;  L.  &  N.  R.  R.  v. 
Gilbert,  88  Terni.  430.— Ed. 

2  Part  of  the  opiuion  is  omitted.  —  Ed. 


504         MYNAED    V.    SYRACUSE,   BINGHAMPTON,    ETC.    RAILROAD. 

The  defendant  was  a  common  carrier,  and  as  such  was  absolute!}' 
liable  for  the  safe  carriage  and  delivery  of  property-  intrusted  to  its 
care,  except  for  loss  or  injury  occasioned  by  tlie  acts  of  God  or  public 
enemies.  The  obligations  are  imposed  In-  law,  and  not  by  contract. 
A  common  carrier  is  subject  to  two  distinct  classes  of  liabilities  —  one 
where  he  is  liable  as  an  insurer  without  fault  on  his  part ;  the  other, 
as  an  ordinary  bailee  for  hire,  when  he  is  liable  for  default  in  not  exer- 
cising proper  care  and  diligence  ;  or,  in  other  words,  for  negligence. 
General  words  from  whatever  cause  arising  may  well  be  satisfied  by 
limiting  them  to  such  extraordinary  liabilities  as  carriers  are  under 
without  fault  or  negligence  on  their  part. 

When  general  words  may  operate  without  including  the  negligence 
of  the  carrier  or  his  servants,  it  will  not  be  presumed  that  it  was  in- 
tended to  include  it.  Ever}-  presumption  is  against  an  intention  to 
contract  for  immunity  for  not  exercising  ordinary  diligence  in  the  trans- 
action of  any  business,  and  hence  the  general  rule  is  that  contracts 
will'  not  be  so  construed,  unless  expressed  in  unequivocal  terms.  In 
New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank,  6  How. 
(U.  S.  R.)  344,  a  contract  that  the  carriers  are  not  responsible  in  any 
event  for  loss  or  damage,  was  held  not  intended  to  exonerate  them 
from  liability  for  want  of  ordinary-  care.  Nelson,  J.,  said:  "The 
language  is  general  and  broad,  and  might  very  well  comprehend  every 
description  of  risk  incident  to  the  shipment.  But  we  think  it  would 
be  going  further  than  the  intent  of  the  parties  upon  any  fair  and 
reasonable  construction  of  the  agreement,  were  we  to  regard  it  as 
stipulating  for  wilful  misconduct,  gross  negligence,  or  want  of  ordinary 
care,  either  in  the  seaworthiness  of  the  vessel,  her  proper  equipments 
and  furniture,  or  in  her  management  bj-  the  master  and  hands."  This 
rule  has  been  repeatedly-  followed  in  this  State.  In  Alexander  r. 
Greene,  7  Hill,  533,  the  stipulation  was  to  tow  plaintiff's  canal  boat 
from  New  York  to  Albany  at  tlie  risk  of  the  master  and  owners,  and 
the  Court  of  terrors  reversed  a  judgment  of  the  Supreme  Court  with 
but  a  single  dissenting  vote,  and  decided  that  the  language  did  not  in- 
clude a  loss  occasioned  by  the  negligence  of  the  defendants  or  their 
servants.  In  one  of  several  opinions  delivered  by  members  of  the 
court,  it  was  said,  in  respect  to  the  claim  for  immunity  for  negligence  : 
"To  maintain  a  proposition,  so  extravagant  as  this  would  appear  to 
be,  the  stipulation  of  the  parties  ought  to  be  most  clear  and  explicit, 
showing  that  they  comprehended  in  their  arrangement  the  case  that 
actually  occurred." 

Wells  V.  Steam  Navigation  Co.,  8  N.  Y.  375,  expresslv  approved  of 
the  decision  of  Alexander  v.  Greene,  and  reiterated  the  same  principle. 

Gardiner,  J.,  in  speaking  of  that  case  said  :  "  We  held,  then,  if  a 
part}-  vested  with  a  temporary  control  of  another's  property  for  a  spe- 
cial purpose  of  tliis  sort  would  shield  himself  from  responsibility  on 
account  of  the  gross  neglect  of  himself  or  his  servants,  he  must  show 
his  immunity  on  the  face  of  his   agreement ;  and  that  a  stipulation  so 


MYNAED   V.    SYRACUSE,   BINGHAMPTON,   ETC.   RAILROAD.         505 

extraordinary,  so  contrary  to  usage  and  the  general  understanding  of 
men  of  business,  would  not  be  implied  from  a  general  expression  to 
which  effect  might  otherwise  be  given." 

So,  in  tlie  Steinweg  Case,  43  N.  Y.  123,  the  contract  released  the 
carrier  *■'  from  damage  or  loss  to  any  article  from  or  by  fire  or  explo- 
sion of  any  kind,"  and  this  court  held  that  the  release  did  not  include 
a  loss  by  fire  occasioned  by  the  negligence  of  the  defendant ;  and,  in 
the  Magnin  case,  still  more  recently  decided  by  this  court  (56  N.  Y. 
168),  tlie  contract  with  the  express  company-  contained  the  stipulation 
"  and,  if  the  value  of  the  property  above  described  is  not  stated  liy  the 
shipper,  the  holder  tiiereof  will  not  demand  of  the  Adams  Express 
Company  a  sum  exceeding  fift}'  dollars  for  the  loss  or  detention  of, 
or  damage  to,   the  propert}-  aforesaid." 

It  was  held,  reversing  the  judgment  below,  that  the  stipulation  did 
not  cover  a  loss  accruing  througii  negligence,  Johnson,  J.,  in  the 
opinion,  saying:  "  But  the  contract  will  not  be  deemed  to  except 
losses  occasioned  by  the  carrier's  negligence,  unless  that  he  expressl}' 
stipulated."  In  each  of  these  cases,  the  language  of  the  contract  was 
suffic'ientl\'  broad  to  include  losses  occasioned  by  ordinary  or  gross 
negligence,  but  tlie  doctrine  is  repeated  that,  if  the  carrier  asks  for  im- 
munit}'  for  his  wrongfid  acts,  it  must  be  expressed,  and  that  general 
words  will  not  be  deemed  to  have  been  intended  to  relieve  him  from 
the  consequences  of  such  acts. 

These  authorities  are  directly  in  point,  and  they  accord  with  a  wise 
public  policy,  b^-  which  courts  should  be  guided  in  the  construction  of 
contracts  designed  to  relieve  common  carriers  from  obligations  to  exer- 
cise care  and  diligence  in  tiie  prosecution  of  their  business,  which  tlie 
law  imposes  upon  ordinary  bailees  for  hire  engaged  in  private  business. 
In  the  recent  case  of  Lockwood  v.  Railroad  Co.,  17  Wall.  357,  the 
Supreme  Court  of  the  United  States  decided  that  a  common  carrier 
cannot  lawfully  stipulate  for  exemption  from  responsibility  for  the  neg- 
ligence of  himself  or  his  servants.  If  we  felt  at  liberty  to  review  the 
question,  the  reasoning  of  Justice  Bradle}'  in  that  case  would  be  en- 
titled to  sei'ious  consideration  ;  but  the  right  thus  to  stipulate  has  been 
so  repeatedly  affirmed  by  this  court,  that  the  question  cannot  with  pro- 
prietv  be  regarded  as  an  open  one  in  this  State.  8  N.  Y.  375  ;  11 
N.  Y^.  485  ;  24  N.  Y.  181-196  ;  25  N.  Y.  442  ;  42  N.  Y.  212  ;  49  N.  Y. 
263  ;  51  N.  Y.  61.^ 

The  remedy  is  with  the  Legislature,  if  remed}'  is  needed.  But,  upon 
the  question  involved  here,  it  is  correctly  stated  in  that  case  that  "  a 
review  of  the  cases  decided  bv  the  courts  of  New  York  shows  that, 
though  they  have  carried  the  power  of  the  common  carrier  to  make 
special  contracts  to  the  extent  of  enabling  him  to  exonerate  himself 
from  the  effects  of  even  gross  negligence,  yet  that  this  effect  has  never 
been  given  to  a  contract  general  in  its  terms."     Such  has  been  the  uni- 

1  Compare:  Carr  i^.  L.  &  Y.  Ry.,  7  Ex.  707  ;  McCawley  v.  Furness  Ry.,  L.  R.  8  Q.  B. 
67  J  Black  v.  Goodrich  Trausp.  Co.,  55  Wis.  319.  — Ed. 


506  QUIMBY  V.    BOSTON   AND   MAINE   RAILROAD. 

form  course  of  decisions  in  this  and  most  of  the  other  States,  and 
public  polic}'  demands  that  it  should  not  be  changed.  It  cannot  be  said 
that  parties,  in  making  such  contracts,  stand  on  equal  terms.  Tlie 
shipper,  in  most  cases,  from  motives  of  convenience,  necessit}',  or  ap- 
prehended injury,  feels  obliged  to  accept  the  terms  proposed  by  tlie 
carrier,  and  i)ractically  tlie  contract  is  made  by  one  party  onh',  and 
should,  therefore,  be  construed  most  strongly  against  him  ;  and  espe- 
cially should  he  not  be  relieved  from  the  consequences  of  his  own 
wrongful  acts  under  general  words  or  by  implication. 


QUIMBY  V.  BOSTON   AND   MAINE   RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts,  1890. 

[150  Mass.  365.] 

Devens,  J.  When  the  plaintiff  received  his  injur}',  he  was  travelling 
upon  a  free  pass,  given  him  at  his  own  solicitation  and  as  a  pure  gra- 
tuity", upon  which  was  expressed  his  agreement  that  in  consideration 
thereof  he  assumed  all  risk  of  accident  which  might  happen  to  him 
while  travelling  on  or  getting  on  or  off  the  trains  of  the  defendant  rail- 
road corporation  on  which  the  ticket  might  be  honored  for  passage. 
The  ticket  bore  on  its  face  the  words,  "  Provided  he  signs  the  agree- 
ment on  the  back  hereof."  In  fact,  the  agreement  was  not  signed  by 
the  plaintiff,  he  not  having  been  required  to  do  so  by  the  conductor, 
who  honored  it  as  good  for  the  passage,  and  who  twice  punched  it. 
The  fact  that  the  plaintiff  had  not  signed  it,  and  was  not  required  to 
sign  it,  we  do  not  regard  as  important.  Having  accepted  the  pass,  he 
must  have  done  so  on  the  conditions  full_y  expressed  therein,  whether 
he  actually  read  them  or  not.  Squire  r.  New  York  Central  Railroad, 
98  Mass.  239  ;  Hill  v.  Bo^iton,  Hoosac  Tunnel  &  Western  Railroad, 
144  Mass.  284  ;  Boston  &  Maine  Railroad  v.  Chipman,  146  Mass.  107. 

The  object  of  the  provision  as  to  signing  is  to  furnish  complete  evi- 
dence that  the  person  to  whom  the  pass  is  issued  assents  thereto  ;  but 
one  who  actually  avails  himself  of  such  a  ticket,  and  of  the  privileges 
it  confers,  to  secure  a  passage,  cannot  be  allowed  to  deny  that  he  made 
the  agreement  expressed  therein  because  he  did  not  and  was  not  re- 
quired to  sign  it.  Gulf,  Colorado,  &  Santa  Fe  Railvva}-  r.  McGown, 
Go  Texas,  640,  643;  Illinois  Central  Rail.-oad  v.  Read,  37  111.  484; 
Wells  V.  New  York  Central  Railroad,  24  N.  Y.  181  ;  Perkins  v.  New 
York  Central  Railroad,  24  N.  Y.  196.  If  this  is  held  to  be  so.  the  case 
presents  the  single  question  whether  such  a  contract  is  invalid,  which 
has  not  heretofore  been  settled  in  this  State,  and  upon  which  there  has 
been  great  contrariety  of  opinion  in  different  courts.  If  the  common 
carrier  accepts  a  person  as  a  passenger,  no  such  contract  having  been 


QUIMBY  V.   BOSTON   AND   MAINE   RAILROAD.  507 

made,  such  passenger  ma}"  maintain  an  action  for  negligence  in  trans- 
porting liim,  even  if  he  be  carried  gratuitonsly.  Having  admitted  him 
to  tlie  rights  of  a  passenger,  tlie  carrier  is  not  permitted  to  denj'  that 
he  owes  to  him  the  duty  which,  as  carrying  on  a  public  employment, 
he  owes  to  those  who  have  paid  him  for  the  service.  Todd  v.  Old 
Colony  &  Fall  River  Railroad,  3  Allen,  18;  Commonwealth  v.  Vermont 
&  Massachusetts  Railroad,  108  Mass.  7  ;  Littlejohn  v.  Fitchburg  Rail- 
road, 148  Mass.  478;  Files  v.  Boston  &  Albany  Railroad,  149  Mass, 
204;  Philadelphia  &  Reading  Railroad  v.  Derb}-,  14  How.  468  ;  Steam- 
boat New  World  v.  King,  16  How.  469.  But  the  question  whether  the 
carrier  may,  as  the  condition  upon  which  he  grants  to  the  passenger 
a  gratuitous  passage,  lawfully-  make  an  agreement  with  him  by  which 
the  passenger  must  bear  the  risks  of  transportation,  obviously  differs 
from  this. 

In  a  large  number  of  cases,  the  English  courts,  as  well  as  those  of 
New  York,  have  held  that  where  a  drover  was  permitted  to  accompany 
animals  upon  what  was  called  a  free  pass,  issued  upon  the  condition 
that  the  user  should  bear  all  risks  of  transportation,  he  could  not  main- 
tain an  action  for  an  injury  received  by  the  negligence  of  the  carrier's 
servants.  A  similar  rule  would,  without  doubt,  be  applied  where  a 
servant,  from  the  peculiar  character  of  goods,  such  as  delicate  machin- 
ery, is  permitted  to  accompanj-  them,  and  in  other  cases  of  that  nature. 
That  passes  of  this  character  are  free  passes  proper!}'  so  called,  has 
been  denied  in  other  cases,  as  the  carriage  of  the  drover  is  a  part  ot 
the  contract  for  the  carriage  of  the  animals.  The  cases  on  this  point 
were  carefully  examined  and  criticised  by  Mr.  Justice  Bradley,  in  Rail- 
road Co.  V.  Lockwood,  17  Wall.  357,  367;  and  it  is  there  held  that 
such  a  pass  is  not  gratuitous,  as  it  is  given  as  one  of  the  terms  upon 
which  the  cattle  are  carried.  The  decision  is  put  upon  the  ground  that 
the  drover  was  a  passenger  carried  for  hire,  and  that  with  such  pas- 
senger a  contract  of  this  nature  could  not  be  made.  The  court,  at  the 
conclusion  of  the  opinion,  expressh'  waives  the  discussion  of  the  ques- 
tion here  presented,  and,  as  it  states,  purposeh'  refrains  from  ex- 
pressing any  opinion  as  to  what  would  have  been  the  result  had  it 
considered  the  plaintiff  a  free  passenger,  instead  of  one  for  hire.  Rail- 
way Co.  V.  Stevens,  95  U.  S.  655,  in  which  the  same  distinguished 
judge  delivered  the  opinion  of  the  court,  is  put  upon  the  ground  that 
the  transportation  of  the  defendant,  although  not  paid  for  by  him  in 
money,  was  not  a  matter  of  charity  or  gratuity  in  any  sense,  but  was 
b}'  virtue  of  an  agreement  in  which  the  mutual  interest  of  the  parties 
was  consulted. 

Whether  the  English  and  New  York  authorities  rightly  or  wrongly 
hold  that  one  travelling  upon  a  drover's  pass,  as  it  is  sometimes  called, 
is  a  free  passenger,  they  show  that,  in  the  opinion  of  those  courts,  a 
contract  can  properl}'  be  made  with  a  free  passenger  that  he  shall  bear 
the  risks  of  transportation.  This  is  denied  by  manv  courts  whose 
opinions  are  entitled  to  weight.     It  will  be  observed  that  in  the  case 


508  QUniBY   V.   BOSTON   AND    MAINE   EAILROAD. 

at  bar  there  is  no  question  of  any  wilful  or  malicious  injur}',  and  that 
the  plaintiff  was  injured  In'  the  carelessness  of  the  defendant's  servants. 
The  cases  in  whicli  the  passenger  was  strictly  a  free  passenger,  ac- 
cepting his  ticket  as  a  pure  gratuity,  and  upon  the  agreement  that  ho 
would  himself  bear  the  risk  of  transportation,  are  comparatively  few. 
They  have  all  been  carefullv  considered  in  ttvo  recent  cases,  to  which 
we  would  call  attention.  These  are  Griswold  v.  New  York  &  Now 
England  Railroad,  53  Conn.  371,  decided  in  1885,  and  that  of  Gulf, 
Colorado,  &  Santa  Fe  Railway  v.  McGown,  65  Texas,  640,  decided  in 
1886,  in  which  the  precise  question  before  us  was  raised  and  decided, 
after  a  careful  examination  of  the  authorities,  and  opposite  conclusions 
reached,  by  the  highest  courts  of  Connecticut  and  of  Texas.  No  doubt 
existed  in  either  case,  in  the  opinion  of  the  court,  that  the  ticket  of  the 
passenger  was  strictly  a  gratuitv,  and  it  was  held  b}'  the  former  court 
that,  under  these  circumstances,  the  carrier  and  the  passenger  might 
lawfully  agree  that  the  passenger  should  bear  the  risks  of  transporta- 
tion, and  that  such  agreement  would  be  enforced,  while  the  reverse 
was  held  b}'  the  court  of  Texas.  We  are  brought  to  the  decision  of 
the  question  unembarrassed  by  an}'  weight  of  authority  without  the 
Commonwealth  that  can  be  considered  as  preponderating. 

It  is  urged  on  behalf  of  the  plaintiff,  that,  while  the  relation  of  pas- 
senger and  carrier  is  created  bv  contract,  it  does  not  follow  that  the 
duty  and  responsibility  of  the  carrier  is  dependent  upon  the  contract ; 
that,  while  with  reference  to  matters  indifferent  to  the  public,  parties 
may  contract  according  to  their  own  pleasure,  the}'  cannot  do  so  where 
the  pulilic  has  an  interest ;  that,  as  certain  duties  are  attached  by  law 
to  certain  employments,  these  cannot  be  waived  or  dispensed  with  by 
individual  contracts  ;  tliat  the  duty  of  the  carrier  requires  that  he 
should  convey  his  passengers  in  safety  ;  and  that  he  is  properly  held 
responsible  in  damages  if  he  fails  to  do  so  by  negligence,  whether  the 
negligence  is  his  own  or  that  of  his  servants,  in  order  that  this  safety 
may  be  secured  to  all  who  travel.  It  is  also  said,  that  the  carrier  and 
the  passenger  do  not  stand  upon  an  equality  ;  that  the  latter  cannot 
stand  out  and  higgle  or  seek  redress  in  the  courts  ;  that  he  must  take 
the  alternative  the  carrier  presents,  or  practically  abandon  his  business 
in  the  transfer  of  merchandise,  and  must  yield  to  the  terras  imposed  on 
him  as  a  passenger  ;  that  he  ought  not  to  be  induced  to  run  the  ri'iks 
of  transportation  by  heing  allowed  to  travel  at  a  less  fare,  or  for  any 
similar  reason,  and  thus  to  tempt  the  carrier  or  his  servants  to  care- 
lessness which  may  affect  others  as  well  as  himself;  and  that,  in  few 
words,  public  policy  forbids  that  a  contract  should  be  entered  into  with 
a  public  carrier  by  whicli  he  shall  be  exonerated  from  his  full  respon- 
sibility. Most  of  this  reasoning  can  have  no  application  to  a  strictly 
free  passenger,  who  receives  a  passage  out  of  charity,  or  as  a  gratuity. 

Certainly  the  carrier  is  not  likely  to  urge  upon  others  the  acceptance 
ot  free  passes,  as  the  success  of  his  business  must  depend  on  his  re- 
ceipts.    There  can  be  no  dilficulty  in  the  adjustment  of  terms  where 


QUIMBY   V.    BOSTON    AND    MAINE    KAILKOAD.  509 

passes  are  solicited  as  gratuities.  When  such  passes  are  granted  by 
such  of  the  railroad  officials  as  are  authorized  to  issue  them,  or  by  otlitr 
public  carriers,  it  is  in  deference  largely  to  the  feeling  of  the  community 
in  which  they  are  exercising  a  public  employment.  The  instances  can- 
not be  so  numerous  that  any  temptation  will  be  oGfered  to  carelessness 
in  the  management  of  their  trains,  or  to  an  increase  in  their  fares,  in 
both  of  which  subjects  the  pubUc  is  interested.  In  such  instances,  one 
who  is  ordinarily  a  common  carrier  does  not  act  as  such,  but  is  simply 
in  the  position  of  a  gratuitous  bailee.  The  definition  of  a  common 
carrier,  which  is  that  of  a  person  or  corporation  pursuing  the  public 
emplojinent  of  conveying  goods  or  passengers  for  hire,  does  not  ai)ply 
under  such  circumstances.  The  service  wliich  he  undertakes  to  render 
is  one  which  he  is  under  no  obligation  to  perform,  and  is  outside  of  his 
regular  duties.  In  yielding  to  the  solicitation  of  the  passenger,  he  con- 
sents for  the  time  being  to  put  off  his  public  employment,  and  to  do 
that  which  it  does  not  impose  upon  him.  The  plaintiff  was  in  no  way 
constrained  to  accept  the  gratuit}'  of  the  defendant ;  it  had  been  yielded 
to  him  only  on  his  own  solicitation.  When  he  did,  there  is  no  rule  of 
pul)lic  polic}',  we  think,  that  prevented  the  carrier  from  prescribing,  as 
the  condition  of  it,  that  it  should  not  be  compelled,  in  addition  to  car- 
rying the  passenger  gratuitously,  to  be  responsible  to  him  in  damages 
for  the  negligence  of  its  servants.  It  is  well  known  that,  with  all  the 
care  that  can  be  exercised  in  the  selection  of  servants  for  the  manage- 
ment of  the  various  appliances  of  a  railroad  train,  accidents  will  some- 
times occur  from  momentary  carelessness  or  inattention.  It  is  hardly 
reasonable  that,  beside  the  gift  of  free  transportation,  the  carrier  should 
be  held  responsible  for  tliese,  when  he  has  made  it  the  condition  of  his 
gift  that  he  should  not  be.  Nor,  in  holding  that  he  need  not  be  under 
these  circumstances,  is  any  countenance  given  to  the  idea  that  the  car- 
rier may  contract  with  a  passenger  to  conve}'  him  for  a  less  price  on 
being  exonerated  from  responsibilit}-  for  the  negligence  of  his  servants. 
In  such  a  case  the  carrier  would  still  be  acting  in  the  public  employ- 
ment exercised  by  him,  and  should  not  escape  its  responsibilities,  or 
limit  the  obhgations  which  it  imposes  upon  him. 

In  some  cases  it  has  been  held  that,  while  a  carrier  cannot  limit  his 
liability  for  gross  negligence,  which  has  been  defined  as  his  own  per- 
sonal negligence,  or  that  of  the  corporation  itself  where  that  is  the 
carrier,  he  can  contract  for  exemption  from  liability  for  the  negligence 
of  his  servants.  It  may  be  doubted  whether  any  such  distinction  in 
degrees  of  negligence,  in  respect  to  the  right  of  a  carrier  to  exempt 
himself  from  responsibility  therefor,  can  be  profitabh'  made  or  applied. 
Steamboat  New  World  v.  King,  16  How.  469.  It  is  to  be  observed, 
however,  that  in  the  case  at  bar  the  injury  occurred  through  the  neg- 
ligence of  the  defendant's  servants,  and  not  through  any  failure  on  the 
part  of  the  corporation  to  prescribe  proper  rules  or  to  furnish  pi'oper 
appliances  for  the  conduct  of  its  business. 

We  are  of  opinion  that  where  one  accepts  purely  as  a  gratuity  a  free 


510  GRACE   V.   ADAMS. 

passage  in  a  railroad  train,  upon  the  agreement  that  he  will  assume  all 
risk  of  accident  which  may  happen  to  him  vvliile  travelling  in  such  train 
by  which  he  may  be  injured  in  his  person,  no  rule  of  public  policy  re- 
quires us  to  declare  such  contract  invalid  and  without  binding  force. 
By  the  terms  of  the  report  there  must,  therefore,  be 

Judgment  for  the  defendant. 


GRACE  V.   ADAMS. 
Supreme  Judicial  Court  of  Massachusetts,  1868. 

[100  Mass.  505.] 

Contract,  against  the  defendants,  who  carried  on  business  under 
the  name  of  the  Adams  Express  Compan}-,  to  recover  the  value  of  a 
package  of  mone}'.  In  the  Superior  Court,  judgment  was  ordered  for 
the  plaintiff  on  agreed  facts,  and  the  defendants  appealed.  The  agreed 
facts  were  as  follows : 

"  It  is  agreed  that  the  plaintiff  delivered  to  the  Adams  Express 
Compan}',  as  common  carriers,  at  Wilmington,  in  the  State  of  North 
Carolina,  March  21,  1865,  a  package  containing  one  hundred  and  fifty 
dollars,  directed  to  Patrick  Corbett,  Taunton,  Massachusetts,  and  the 
said  express  company  at  the  same  time  delivered  to  tlie  plaintifl'  a  l)ill 
of  lading,  a  copy  wlieieof  is  hereto  annexed,  and  which  makes  part  of 
this  statement;  that  the  said  express  compan}- shipped  said  package 
with  other  packages  from  Wilmington  by  the  steamship  General  Lyon, 
which  ship  was  accidentally  burned  at  sea,  and  said  package  thereby 
destroyed.  It  is  further  agreed,  if  evidence  of  the  fact  be  admissil)le, 
that  the  plaintiff  would  testify  that  when  the  plaintiff  delivered  the 
package  and  took  the  bill  of  lading,  a  copy  of  which  is  annexed,  he 
did  not  read  the  same." 

The  material  parts  of  the  bill  of  lading,  of  which  the  cop}'  was  an- 
nexed, were  as  follows : 

"Adams  Express  Compan}'.  Great  Eastern,  Western  &  Southern 
Express  Forwarders.     S150.     Form  .5.     Wilmington,  March  21,  1865. 

Received  from One  P.,  Sealed  and  said  to  contain  one  hundred 

and  fifty  dolls.     Addressed,  Patrick  Corbett,  Taunton,  Mass. 

"  Upon  the  special  acceptance  and  agreement  that  this  company  is 
to  forward  the  same  to  its  agent  nearest  or  most  convenient  to  destina- 
tion only,  and  there  to  deliver  the  same  to  other  parties  to  complete 
the  transportation  —  such  delivery  to  terminate  all  liability  of  this 
company  for  such  package  ;  and  also,  that  this  companj'  is  not  to  be 
liable  in  an}'  manner  or  to  any  extent  for  an}'  loss,  damage,  or  deten- 
tion of  such  package,  or  of  its  contents,  or  of  any  portion  thereof,  .  .  . 
occasioned  by  the  dangers  of  railroad  transportation,  or  ocean  or 
river  navigation,  or  by  fire  or  steam.     For  the  Company.      Robinson." 


GRACE    V.    ADAMS.  511 

Colt,  J.  It  is  to  be  received  as  now  settled  b}'  tlie  current  and 
weight  of  autborit}',  that  a  common  carrier  may,  by  special  contract, 
avoid  or  limit  his  liability  at  common  law  as  an  insurer  of  propert}' 
intrusted  to  him  against  loss  or  damage  by  fire,  occurring  without  fault 
on  his  part.  It  is  not  necessary  to  discuss  here,  how  far  in  this  or 
other  respects  he  may  escape  those  liabilities  which  the  policy  of  the 
law  imposes,  b}-  mere  notices  brought  home  to  the  employer,  or  whether 
the  effect  of  such  notices  may  not  be  held  to  vary  according  as  it  is 
attempted  to  avoid  those  extraordinary  responsibilities  which  are 
peculiar  to  common  carriers,  or  those  other  liabilities  under  which 
they  are  held  in  common  with  all  other  bailees  for  hire.  Judson  v. 
Western  Railroad  Co.,  6  Allen,  486  ;  York  Co.  v.  Central  Railroad 
Co.,  3  Wallace,  107;  Hooper  v.  Wells,  27  Cal.  11;  and  see  article 
b}-  Redfield,  with  collection  of  authorities,  5  Am.  Law  Reg.  (N.  S.)  1. 

It  is  claimed  here  that  the  shipping  receipt  or  bill  of  lading  con- 
stituted a  valid  and  binding  contract  between  the  parties,  and  that, 
upon  the  loss  at  sea  of  the  plaintiff's  package  in  the  course  of  its  trans- 
portation under  the  contract,  b}'  an  accidental  fire,  the  defendants  were 
discharged  from  any  obligation  to  the  plaintiff  in  regard  to  it;  and  the 
court  are  of  opinion  that  this  claim  must  be  sustained. 

The  receipt  was  delivered  to  the  plaintiff  as  the  contract  of  the  de- 
fendants ;  it  is  in  proper  form  ;  and  the  terms  and  conditions  are 
expressed  in  the  body  of  it  in  a  way  not  calculated  to  escape  attention. 
The  acceptance  of  it  by  the  plaintiff,  at  the  time  of  the  delivery  of  his 
package,  without  notice  of  his  dissent  from  its  terms,  authorized  the 
defendants  to  infer  assent  b}-  the  plaintiff.  It  was  his  only  voucher 
and  evidence  against  the  defendants.  It  is  not  claimed  that  he  did  not 
know,  when  he  took  it,  that  it  was  a  shipping  contract  or  bill  of  lading. 
It  was  his  dut}'  to  read  it.  The  law  presumes,  in  the  absence  of  fraud 
or  imposition,  that  he  did  read  it,  or  was  otherwise  informed  of  its 
contents,  and  was  willing  to  assent  to  its  terms  without  reading  it. 
An}^  other  rule  would  fail  to  conform  to  the  experience  of  all  men. 
Written  contracts  are  intended  to  preserve  the  exact  terms  qf  the 
obligations  assumed,  so  that  the}-  ma}'  not  be  subject  to  the  chances 
of  a  want  of  recollection  or  an  intentional  misstatement.  The  defend- 
ants have  a  right  to  this  protection,  and  are  not  to  be  deprived  of  it 
b}-  the  wilful  or  negligent  omission  of  the  plaintiff  to  read  the  paper. 
The  case  of  Rice  v.  Dwight  Manufacturing  Co.,  2  Cush.  80,  87,  is  an 
authority  in  point.  In  an  action  to  recover  for  work  done,  the  defence 
was  that  the  work  was  performed  under  a  special  contract,  and  a 
paper  of  printed  regulations  was  shown  to  have  been  given  to  and 
accepted  by  the  plaintiff  as  containing  the  terms  of  the  contract,  but 
which  was  not  signed  b}-  either  party.  The  plaintiff  denied  knowledge 
of  its  contents;  but  it  was  said  b}-  Forbes,  J.,  that  where  a  part}'  enters 
into  a  written  contract,  in  the  absence  of  fraud  he  is  conclusively  pre- 
sumed to  understand  the  terms  and  legal  effect  of  it,  and  to  consent  to 
them.  See  also  Lewis  v.  Great  Western  Railway  Co.,  5  H.  &  N.  867  ; 
Squire  v.  New  York  Central  Railroad  Co.,  98  Mass.  239. 


512  GRACE   V.   ADAMS. 

This  case,  then,  is  brought  within  the  rule  which  authorizes  carriers 
to  I'elieve  themselves  from  losses  of  this  description  by  express  con- 
tracts with  the  employer.  It  differs  from  the  cases  of  Brown  v. 
Eastern  Railroad  Co.,  11  Cush.  97,  and  Malone  v.  Boston  &  Worces- 
ter Railroad  Co.,  12  Gray,  388,  The  limitation  relied  on  in  both 
those  cases  was  in  the  form  of  a  notice  printed  on  the  back  of  a  pas- 
senger ticket,  relating  to  baggage  ;  and  it  was  held  that  there  was  no 
presumption  of  law  that  the  party,  at  the  time  of  receiving  the  ticket, 
had  knowledge  of  the  contents  of  the  notice.  It  is  obvious  that  in 
those  cases  the  ticket  was  not  designed  to  be  held  as  the  evidence  of 
the  contract  between  the  parties.  The  contract,  which  was  of  passen- 
ger transportation,  was  not  attempted  to  be  set  forth.  At  most,  it 
was  but  a  check,  to  be  used  temporaril}'  and  then  delivered  to  the  con- 
ductor as  his  voucher,  with  these  notices  on  the  back.  The  presump- 
tion that  every  man  knows  the  terms  of  a  written  contract  which  he 
enters  into,  therefore,  did  not  appl^-.  Nor  was  the  acceptance  of  the 
ticket  conclusive  evidence  of  assent  to  its  terras. 

The  recent  case  of  Buckland  v.  Adams  P^xpress  Co.,  97  Mass.  124, 
requires  notice,  because,  upon  a  case  in  most  respects  similar  to  this, 
a  different  result  was  reached  by  the  court.  The  legal  principles  upon 
which  that  case  was  decided  are  those  here  stated.  It  was  a  case  upon 
an  agreed  statement  of  facts  ;  and  the  difference  resulted  in  the  appli- 
cation of  the  law  to  the  facts  then  presented.  It  is  to  be  noticed  that 
the  receipt  containing  the  limitation  relied  on  was  in  that  case  delivered 
to  a  workman  in  the  employ  of  a  stranger,  who,  so  far  as  it  appears, 
had,  in  that  particular  instance  only,  been  requested  by  the  plaintiff's 
to  deliver  the  parcel  in  their  absence,  and  as  a  mere  favor  to  them. 
And  it  further  appeared  that  the  previous  course  of  dealing  between 
the  parties  was  such  that,  in  a  majorit}'  of  instances  in  which  the  plain- 
tiffs had  employed  the  defendants  to  transport  like  packages,  no  receipt 
was  made  out,  and  no  special  contract  insisted  upon.  Under  such 
circumstances,  it  was  held  that  it  could  not  fairly  be  inferred  that  the 
plaintiffs  understood  and  assented  to  the  contents  of  the  receipt  as 
fixing  the  terms  on  which  the  defendants  were  to  transport  the  mer- 
chandise, or  that  the  workman  had  authority  to  make  an  unusual 
contract. 

The  same  remarks  apply  to  the  case  of  Perry  v.  Thompson,  98  Mass. 
249,  which  is  to  be  distinguished  from  the  case  at  bar  by  the  fact  that, 
in  the  previous  dealings  of  the  parties,  property  had  been  received  and 
carried  without  any  notice  relating  to  the  carrier's  liability  having  been 
given,  and  b}-  the  further  fact  that,  when  the  notice  in  that  instance 
was  received,  the  printed  parts  of  it  were  so  covered  up  by  the  revenue 
stamp  affixed  to  the  receipt  that  it  could  not  be  read  intelligibly. 

So  in  Fillebrown  v.  Grand  Trunk  Railway'  Co.,  55  Maine,  462, 
it  was  held  that,  when  a  verbal  contract  for  transportation  was  made 
without  restriction,  its  legal  effect  would  not  be  changed  by  the  condi- 
tions in  a  receipt  which  was  subsequent!}'  given  to  the  clerk  of  the 


BLOSSOM    V.    DODD.  513 

consignor,  who  delivered  the  goods  at  the  station,  but  who  had  no 
express  authority  either  to  deliver  or  to  contract  with  the  defendants. 

These  cases  do  not  reach  the  case  at  bar,  where  the  delivery  of  the 
receipt  was  directly  to  the  plaintiff;  nor  would  they  be  held  decisive  in 
a  case  where  the  delivery  was  made  and  the  receipt  accepted  under 
ordinary  circumstances  by  a  special  or  general  agent  of  the  owner,  not 
a  mere  servant  or  porter,  and  who  might  be  regarded  as  clothed  with 
authority  to  bind  the  owner  in  giving  instructions  and  making  condi- 
tions affecting  the  transportion.  Squire  v.  New  York  Central  Railroad 
Co.,  98  Mass.  239.  Judgment  for  the  defendant} 


BLOSSOM  V.  DODD. 
Court  of  Appeals,  New  York,  1870. 

[43  N.  Y.  264.] 

Church,  C.  J.  The  common-law  liability  of  common  carriers  can- 
not be  limited  by  a  notice,  even  though  such  notice  be  brought  to  the 
knowledge  of  the  persons  whose  property  they  carry.  Dorr  v.  N.  J. 
Steam  Navigation  Co.,  1  Kern.  485.  But  such  liabilitj-  may  be  limited 
by  express  contract.  Dorr  v.  N.  J.  Steam  Navigation  Co.,  1  Kern. 
485  ;  Bissell  v.  N.  Y.  Central  R.  R.  Co.,  442  ;  French  v.  Buffalo,  N.  Y. 
&  Erie  R.  R.  Co.,  4  Keyes,  108. 

The  principal  question  in  this  case  is,  whether  there  was  a  contract 
made  between  the  parties  limiting  the  liability  of  the  defendants  to  a 
loss  of  $100  for  the  valise  and  its  contents,  which  the  plaintiff  in- 
trusted to  tlieir  care.  A  facsimile  of  the  card  upon  which  the  alleged 
contract  was  printed  has  been  furnished  in  the  papers.  It  does  not 
appear,  on  examination,  like  a  contract,  and  would  not,  from  its  gen- 
eral appearance,  be  taken  for  anything  more  than  a  token  or  check 
denoting  the  numbers  of  the  checks  received,  to  be  used  for  identifica- 
tion upon  the  delivery  of  the  baggage.  The  larger  portion  of  the 
printed  matter  is  an  advertisement,  in  large  type.  The  alleged  con- 
tract is  printed  in  very  small  t3'pe,  and  is  illegible  in  the  night  by  tiie 
ordinary  lights  in  a  railroad  car,  and  is  not  at  all  attractive,  while  other 
parts  of  the  paper  are  quite  so. 

Considerable  stress  is  laid  upon  the  fact  that  the  words,  "  Read  this 
receipt,"  were  printed  on  the  card  in  legible  type.     The  receipt  reads: 

''Received  of  ]\I articles  or  checks  numbered  as  below;  368-319." 

"  For  Dodd's    Express."     Tlic  blank  is  not    filled,  nor  is  the  receipt 
signed  by  an}-  one.     The  invitation  is  not  to  read  the  contract,  but  tlie 

i  Compare  :  Lawrence  v.  N.  Y.  P.  &  B.  R.  R.,  36  Conn.  63  ;  L  &  N.  R.  R.  v.  Brown- 
lee,  14  Bush,  590;  Kirkland  v.  Dinsmore.  02  N.  Y.  171  ;  Farnham  v.  C.  &  A.  R.  R., 
55  Pa.  53  ;  Di]lard  v.  L.  &  N.  R.  R.,  2  Lea,  288.  —  Ed. 

33 


514  BLOSSOM    V.   DODD. 

receipt.  In  order  to  read  it,  tlie  paper  must  be  turned  sideways ;  and 
no  one,  thus  reading  tlie  receipt,  would  suspect  tliat  it  liad  an}*  con- 
nection witli  the  alleged  contract,  which  is  printed  in  different  and  ver\' 
small  type  across  the  bottom  of  the  paper.  It  is  no  part  of  the  re- 
ceipt, is  not  connected  with  it,  and  is  not  referred  to  in  an}'  other  part 
of  the  paper.  The  defendants  are  dealing  with  all  classes  of  the  com- 
munity; and  pul)lic  policy,  as  well  as  established  principles,  demand 
that  the  utmost  fairness  should  be  observed. 

This  paper  is  subject  to  the  criticism  made  by  Lord  Ellcnborongb, 
in  Butler  v.  Heane,  2  Camp.  415,  in  which  he  said  that  ''It  called  at- 
tention to  ever3'thing  that  was  attractive,  and  concealed  what  was  cal- 
culated to  repel  customers  ;  "  and  added  :  "  If  a  common  carrier  is  to 
be  allowed  to  limit  his  liabilit}',  he  must  take  care  that  any  one  who 
deals  with  him  is  fully  informed  of  the  limits  to  which  he  confines  it." 
Nor  did  the  nature  of  the  business  necessarily  conve}'  the  idea  of  a 
contract  to  the  traveller  in  such  a  manner  as  to  raise  the  presumption 
that  he  knew  it  was  a  contract,  expressive  of  the  terms  upon  which  the 
propert}'  was  carried,  or  limiting  the  liability  of  the  carrier.  Baggage 
is  usually  identified  bj-  means  of  checks  or  tokens.  And  such  a  card 
does  not  necessarily  import  an^'thing  else.  At  all  events,  to  have  the 
effect  claimed,  the  limitation  should  be  as  conspicuous  and  legilile  as 
other  portions  of  the  paper.  In  Brown  v.  E.  R.  R.  Co.,  11  Cush.  97, 
where  tlie  limitation  was  printed  upon  the  back  of  a  passenger  ticket, 
the  court  says:  "The  party  receiving  it  miglit  well  suppose  that  it 
was  a  mere  check,  signifying  that  the  party  had  paid  his  passage  to  the 
place  indicated  on  the  ticket."  In  the  case  of  Prentice  v.  Decker,  49 
Barb.  21,  and  Limburger  v.  Westcott,  49  Bar!).  283,  limitations  were 
claimed  upon  the  deliver}'  of  similar  cards  of  another  express  com- 
pany, and  the  court  held,  in  both  cases,  that  such  deliver}-  did  not 
charge  the  persons  receiving  them  with  knowledge  that  they  contained 
contracts.  A  different  construction  was  put  upon  the  delivery  of  a 
similar  card,  in  Hopkins  v.  Westcott,  6  Blatchf.  R.  64  ;  but  I  infer 
that  the  learned  judge  who  delivered  the  opinion  intended  to  decide 
that  something  short  of  an  express  contract  will  suffice  to  screen  the 
carrier  from  his  common-law  liability,  and  that  a  notice,  personally 
served,  which  could  be  read,  would  have  that  effect.  The  attention 
of  the  court  does  not  seem  to  have  been  directed  to  the  distinction  be- 
tween such  a  notice  and  a  contract.  The  delivery  and  accei)tance  of 
a  paper  containing  the  contract  may  be  binding,  though  not  read,  pro- 
vided the  business  is  of  such  a  nature  and  the  delivery  is  under  such 
circumstances  as  to  raise  the  presumption  that  the  person  receiving  it 
knows  that  it  is  a  contract,  containing  the  terms  and  conditions  upon 
which  the  property  is  received  to  be  carried.  In  such  a  case  it  is  pre- 
sumed that  the  person  assents  to  the  terms,  whatever  they  may  be. 
This  is  the  utmost  extent  to  which  the  rule  can  be  carried,  without 
abandoning  the  principle  that  a  contract  is  indispensable.  The  recent 
case  of  Grace  v.  Adams,  100  Mass.  5G0,  relied  upon  by  the  defendant's 


BLOSSOM    V.    DODD.  515 

counsel,  was  decided  upon  this  principle.  The  ))laintifr  delivered  a 
package  of  nione}"  to  an  express  company,  and  took  a  recei[)t  contain- 
ing a  provision  exempting  the  company  from  liabilit}-  for  loss  b\-  fire ; 
and  the  court  held  that  he  knew  that  tlie  paper  contained  the  condi- 
tions upon  which  the  money  was  to  be  carried,  and  was,  therefore, 
presumed  to  have  assented  to  them,  altliough  he  did  not  read  the  paper. 
The  court  say:  "It  is  not  claimed  that  he  did  not  know,  when  he 
took  it,  that  it  was  a  shipping  contract,  or  bill  of  lading."  So,  iu  Van 
GoU  V.  The  S.  E.  R.  Co.,  104  Eng.  Com.  Law  R.  75,  the  same  princi- 
ple was  decided.  Willes,  J.,  said :  "  Assuming  that  the  plaintiff  did 
not  read  the  terms  of  the  condition,  it  is  evident  she  knew  they  were 
there."  Keating,  J.,  said  :  "  It  was  incumbent  on  the  company  to 
show  that  such  was  the  contract."  ..."  I  think  there  was  evidence 
that  the  plaintiff  assented  to  those  terms." 

As  to  bills  of  lading  and  other  commercial  instruments  of  like  char- 
acter, it  has  been  held  that  persons  receiving  them  are  presumed  to 
know,  from  their  uniform  character  and  the  nature  of  the  business,  that 
they  contain  the  terms  upon  which  the  property  is  to  be  carried.  But 
checks  for  baggage  are  not  of  that  character,  nor  is  such  a  card  as  was 
delivered  in  this  instance.  It  was,  at  least,  equivocal  in  its  character. 
In  such  a  case  a  person  is  not  presumed  to  know  its  contents,  or  to 
assent  to  them. 

The  circumstances  under  which  the  paper  was  received  repel  the 
idea  of  a  contract.  No  such  intimation  was  made  to  the  plaintiff.  He 
did  not,  and  could  not,  if  he  had  tried,  read  it  in  his  seat.  It  is  found 
that  he  might  have  read  it  at  the  end  of  the  car,  or  by  the  lights  or,  the 
pier  or  in  the  ferryboat;  and  it  is  claimed  that  he  should  have  done  so, 
and,  if  dissatisfied,  should  have  expressed  his  dissent.  If  he  had  done 
so,  and,  in  the  bustle  and  confusion  incident  to  such  occasions,  could 
have  found  the  messenger  and  demanded  his  baggage,  the  latter  might 
have  claimed,  upon  the  theory  of  this  defence,  that  the  contract  was 
completed  at  the  delivery  of  the  paper,  and  that  he  had  a  right  to  per- 
form it  and  receive  the  compensation. 

It  is  impossible  to  maintain  this  defence  without  violating  established 
legal  principles  in  relation  to  contracts.  It  was  suggested  on  the  argu- 
ment, that  the  stipulation  to  charge  according  to  the  value  of  the  prop- 
erty is  just  and  proper.  This  may  be  true;  but  the  traveller  should 
have  something  to  say  about  it.  The  contract  cannot  be  made  l)y  one 
party.  If  the  traveller  is  informed  of  the  charges  graduated  by  vakie, 
he  can  have  a  voice  in  the  bargain  ;  but,  in  this  case,  he  had  none. 
Whilst  the  carrier  should  be  protected  in  his  legal  right  to  limit  his  re- 
sponsibility, the  pu1)lic  should  also  be  protected  against  imposition  and 
fraud.  The  carrier  must  deal  with  the  public  upon  terms  of  equality  ; 
and,  if  he  desires  to  limit  his  liability,  he  must  secure  ,the  assent  of  those 
with  whom  he  transacts  business. 

My  conclusion  is,  that  no  contract  was  proved. 
1.    Because  it  was  obscurely  printed. 


516  ANCHOR   LINE   V.   DATER, 

2.  Because  the  nature  of  the  transaction  was  not  such  as  necessaril}'' 
charged  the  plaintiff  with  knowledge  that  the  paper  contained  the 
contract, 

3.  Because  the  circumstances  attending  the  delivery  of  the  card  re- 
pel the  idea  that  the  plaintiff  had  such  knowledge,  or  assented  in  fact 
to  the  terms  of  the  alleged  contract. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment  abso- 
lute ordered  for  the  plaintiff,  with  costs. 

All  the  judges  concurring,  upon  the  ground  that  no  contract  limiting 
the  liability  of  defendants  was  proved. 

Order  affirmed,  and  Judgment  absolute  for  the  2)1(1^11^  ordered} 


ANCHOR  LINE  v.  DATER. 
Supreme  Court  of  Illinois,  1873. 

[68  ///.  369.] 

Breese,  C.  J.^  This  was  an  action  on  the  case,  against  appellants 
as  a  common  carrier,  for  failing  to  carr\-  and  deliver  to  the  consignee 
two  hundred  barrels  of  flour.  The  general  issue  was  pleaded,  and  the 
cause  tried  by  the  court  without  a  jur}',  who  found  the  issue  for 
the  plaintiffs,  and  assessed  their  damages  at  fourteen  hundred 
dollars. 

A  motion  for  a  new  trial  was  overruled  and  judgment  rendered  for 
the  plaintiffs. 

To  reverse  tliis  judgment  the  defendants  appeal. 

The  flour  was  destroyed  in  the  warehouse  of  appellants  by  the  great 
October  fire.  It  was  delivered  to  appellants'  agent  late  on  Saturdaj', 
tiie  7th  day  of  October,  too  late  in  the  da}-  to  be  placed  on  board 
the  propeller  of  that  da}-,  and  was  warehoused  in  a  safe  ware- 
house. 

The  bill  of  lading  delivered  to  the  consignors  relieves  the  carrier 
from  liabilit}-  for  loss  b}'  fire,  while  the  property-  is  in  transit  or  while 
in  depots,  &c. 

This  bill  of  lading,  appellants  insist,  was  the  contract  of  the  parties, 
by  which  the}'  are  bound,  and  the  provisions  of  which  are  plainly-  and 
easily  understood  b}'  an}-  business  man,  and  the  assent  of  the  shipper 
to  the  terms  contained  in  it  should  be  presumed. 

The  court,  ."fitting  as  a  jury,  did  not  find  evidence  sufficient  to  justify 
it  in  presuming  assent  from  the  mere  acceptance  of  the  receipt.  The 
shipper  had  no  alternative  but  an  acceptance  of  it,  and  his  assent  to 
its  conditions  cannot  be  inferred  from  that  fact  alone.     It  is  in  proof 

1  Compare  :  Ramaley  v.  Lelaiid,  6  Robt.  (N.  Y.)  358.  —  Eu 
*  Part  of  the  opinion  is  omitted,  —  Ed. 


WEHMANN   V.   MINNEAPOLIS,   ETC.   RAILWAY.  517 

that  its  terms  and  conditions  were  not  known  to  tliese  shippers,  although 
thej'  had  accepted  a  large  number  of  them  in  the  course  of  their  busi- 
ness with  the  appellants. 

The  terms  and  conditions  of  this  l)ill  of  lading,  or  receipt,  were  in- 
serted for  the  purpose  of  limiting  the  liubilit\'  appellants  were  under 
by  the  common  law.  They  should  appear  plaiuh'  in  the  instrument,  be 
understood  by  the  consignor,  and  knowingly  accepted  as  the  contract 
of  the  parties,  and  intended  to  evidence  the  terms  of  the  contract. 
These  were  points  for  the  court  trying  the  case,  and  the  finding  of  the 
court  in  this  respect  cannot  be  disturbed. 

AVe  see  no  cause  to  depart  from  the  rule  established  b}'  this  court,  in 
Adams  P^xpress  Co.  v.  Haynes,  42  111.  89,  and  111.  Central  R.  R.  Co.  r. 
Fi'ankenberg  et  ciL,  54  111.  88,  and  that  is,  if  a  shipper  takes  a  receipt 
for  his  goods  from  a  common  carrier,  which  contains  conditions  limit- 
ing the  liabilit}'  of  the  carrier,  with  a  full  understanding,  on  the  part  of 
the  shipper,  of  such  conditions,  and  intending  to  assent  to  them,  it 
becomes  his  contract  as  fully  as  if  he  had  signed  it,  and  these  are 
questions  for  the  jury.  .  .  } 


WEHMANN  V.  MINNEAPOLIS,    ST.    PAUL   AND   SAULT 
SAINTE   MARIE   RAILWAY. 

Supreme  Court  of  Minnesota,  1894. 

[58  Minn.  22.] 

GiLFiLLAN,  C.  J.  The  defendant  had  a  connection  with  the  Lehigh 
Valley  Transportation  Compau}'  and  the  Lehigh  Valley  Railroad  Com- 
pan}',  forming  a  continuous  line  from  Minneapolis  to  various  points  in 
the  east ;  the  defendant's  part  of  such  continuous  line  being  by  rail 
from  Minneapolis  to  Gladstone,  Mich.,  the  transportation  company's 
part  by  boat  from  Gladstone  to  Buffalo,  N.  Y.,  and  the  Lehigh  Valley 
Railroad  Companv's  from  Buffalo  by  rail  to  various  points  in  the  east, 
among  them  to  Philadelphia.  The  three  carriers  had  established  and 
published  joint  or  through  tariffs  of  rates  for  freight  carriage  from 
Minneapolis  to  the  various  points  in  the  east  to  which  the  continuous 
line  extended,  so  as  to  come  within  the  provisions  of  25  U.  S.  Stat. 
oh.  382,  p.  855. 

Plaintiff's  shipped  with  defendant,  at  Minneapolis,  a  carload  of 
flour,  consigned  to  a  part}'  named  in  the  bill  of  lading  at  Pliiladelphia. 
It  arrived  at  Gladstone  November  21,  1891,  was  put  in  defendant's 
warehouse  at  that  place,  where  it  remained  till  November  29th.  when 
it  was  destroyed  by  fire.  There  was  no  evidence  on  the  trial  that 
notice  of  the  arrival  of  the  flour  at  Gladstone  was  given  to  the  trans- 
portation company  or  to  the  plaintiff. 

1  Compare:  Gaiaes  v.  Union  T.  &  I.  Co.,  28  Oh.  St.  418.  Ed. 


518  WEHMANN    V.    MINNEAPOLIS,   ETC.    RAILWAY. 

We  do  not  think  the  estabhshing  of  joint  or  through  rates  in  such 
cases  of  itself  makes  the  different  carriers  in  the  continuous  line  joint 
carriers  for  the  line,  or  makes  any  one  of  the  carriers  liable  for  the 
defaults  of  an}'  of  the  others.  At  the  most,  the  receiving  carrier  would 
be  agent  for  each  of  the  others  to  contract  for  carriage  over  their 
respective  lines,  so  as  to  create  a  dut}'  on  each  to  receive  goods  at  the 
point  vv-here  the  preceding  carrier's  line  ends,  and  carry  tiiem  to  the 
end  of  its  part  of  the  line,  and  deliver  them  to  the  carrier  next  beyond. 

The  bill  of  lading  executed  by  defendant  to  plaintiff  cannot  be  con- 
strued to  be  a  contract  on  its  own  behalf  to  carry  from  Minneapolis  to 
Philadelphia,  or  anything  more  than  a  contract  to  carry  over  its  own 
line  to  Gladstone,  and  there  deliver  to  the  transportation  company. 

Under  such  an  arrangement  for  a  continuous  line  and  joint  or 
through  rates  it  is  the  dut}'  of  the  first  or  receiving  carrier,  on  receiv- 
ing goods  for  carriage  to  any  point  on  the  continuous  line  beyond  its 
own  line  to  carry  them  with  due  despatch  to  the  end  of  its  line,  and 
there  deliver  them  to  the  next  carrier,  whose  dut}'  it  is  to  receive  and 
carry  them  with  due  despatch  to  their  place  of  destination,  and  deliver 
them  to  the  owner  or  consignee  ;  or,  if  the  place  of  destination  be  be- 
yond its  own  line,  to  deliver  them  at  the  end  of  its  line  to  the  next 
carrier,  to  which  a  like  dut}'  will  then  attach.  In  such  case,  the  owner, 
by  delivering  his  goods  to  be  carried  through,  does  not  contemplate 
nor  make  a  contract  for  storage.  His  contract  is  for  carriage,  and, 
until  the  goods  reach  their  final  destination,  he  has  a  right  to  a  con- 
tinuous carrier's  duty  and  responsibilit}',  which  cannot,  without  his 
consent,  be  changed  to  the  duty  and  responsibility  of  a  warehouseman, 
however  convenient  that  might  be  for  the  carrier.  And,  from  the  time 
its  duty  of  carrier  attaches,  any  carrier  in  the  line  can  discharge  itself 
of  the  responsibilit}'  as  such  onl}'  by  performing  its  full  duty  by  carry- 
ing the  goods,  and  delivering  them  to  the  next  carrier  if  they  ai-e  to 
go  beyond  its  line.  The  responsibilit\'  of  the  preceding  carrier  does 
not  cease  until  the  responsibility  of  the  next  one  attaches.  Any  other 
rule  would  make  an}'  arrangement  for  a  continuous  line  and  through 
rates  a  snare  to  the  public. 

The  liability  of  the  defendant  is  to  be  determined  as  though  its 
contract  had  been  to  carry  to  Gladstone,  and  there  deliver  to  any 
consignee. 

There  is  no  express  evidence  on  the  point,  but  under  the  arrange- 
ment for  a  continuous  line,  it  is  to  be  presumed  that  the  transporta- 
tion company  had  an  agent  at  that  point,  to  whom  the  flour  might 
have  been  delivered,  and  to  whom  notice  of  its  arrival  might  have 
been  given  ;  and  that  the  defendant  knew  who  that  agent  was. 

When  the  consignee  resides  at  the  place  of  destination,  or  has  an 
agent  there,  authorized  to  receive  the  goods,  and  that  is  known  to  the 
carrier,  the  latter's  liability  as  carrier  does  not  end,  and  the  liability 
become  that  of  a  warehouseman,  until  the  lapse,  after  notice  to  such 
consignee  or  agent  that  the  goods  have  arrived,  of  a  reasonable  time  to 


WEHMANN    V.    MINNEAPOLIS,   ETC.    RAILWAY.  519 

receive  and  remove  them.  Derosia  r.  Winona  &^St.  Peter  R.  Co.,  18 
Minn.  133  (Gil.  119);  Tinney  u.  First  Division  St.  P.  &  P.  11.  Co., 
19  Minn.  251  (Gil.  211). 

As  the  flour  was  not  delivered  to  the  trans[)oration  com[niny,  nor 
notice  of  its  arrival  given  to  its  agent,  so  that  its  resixjnsibility  as 
carrier  might  attach,  the  res[)onsii)ility  of  defendant  as  carrier  had  not 
ended  at  the  time  of  the  fire,  unless,  by  virtue  of  a  clause  in  the  bill  of 
lading  in  these  words  :  "  It  being  further  expressl}-  agreed  that  this 
company  assumes  no  liability,  and  it  is  not  to  be  held  responsible  as 
common  carrier,  for  any  loss  or  injury  to  said  property  after  its  arrival 
at  its  warehouse  aforesaid,  or  for  any  loss  or  damage  thereto,  or  any 
dela}'  in  transportation  or  delivery  thereof,  by  any  connecting  or  suc- 
ceeding carrier." 

Conceding  that,  because  this  was  a  shipment  for  carriage  beyond  the 
limits  of  the  State,  the  statutes  of  the  State  do  not  apply,  and  that  the 
validity  of  the  clause  is  to  be  determined  by  the  principles  of  the  com- 
mon law,  then  the  question  arises,  was  there  a  consideration  to  support 
it?  Such  a  clause,  to  be  of  force,  must  stand  as  a  contract  between  the 
shipper  and  the  carrier,  and,  as  in  the  case  of  all  contracts,  there  must 
be  a  consideration  for  it.  One  exercising  the  employment  of  a  com- 
mon carrier  of  goods  is  bound  to  receive  and  carry  such  (within  the 
class  of  goods  that  he  carries)  as  are  tendered  to  him  for  the  purposes, 
and,  in  the  absence  of  special  contract,  to  carr}-  them  with  the  full 
common-law  liability  of  a  common  carrier.  His  receipt  of  and  under- 
taking to  carr}'  them,  being  a  duty  imposed  on  him  by  law,  is  not  a 
consideration  to  support  such  special  contract.  There  must  be  some 
other.  That  is  generallj'  furnished  by  some  concession  in  rates.  And, 
where  the  agreement  is  set  forth  in  the  contract  for  carriage,  it  would 
probably  be  presumed  that,  in  a  case  where  parties  could  make  any, 
there  was  some  such  concession  as  a  consideration  for  relieving  the 
carrier  of  part  of  his  common-law  liabilit}'.  But  in  such  a  case  as  this, 
any  abatement  of  rates  is  forbidden  by  act  of  Congress,  and  therefore 
none  can  be  presumed. 

The  tariff  of  joint  rates  in  the  case  makes  no  mention  of  any  limita- 
tion of  liability.  They  are  to  be  taken,  therefore,  as  rates  established 
for  carriage  with  full  common  carrier's  liability  ;  and  under  the  act  of 
Congress  no  abatement  could  be  made  to  support  a  contract  for  a 
limited  liability. 

The  clause  is  void  for  want  of  a  consideration  to  support  it. 

Order  affirmed. 


520  EXPBESS   COMPANY   V.   CALDWELL, 

EXPRESS   COMPANY   v.   CALDWELL. 
Supreme  Court  of  the  United  States,  1874. 

[21   Wall.  264.] 

Error  to  the  Circuit  Court  for  tlie  Western  District  of  Tennessee. 

Caldwell  sued  the  Southern  Express  Companj-  in  the  court  below,  as 
a  common  carrier,  for  its  failure  to  deliver  at  New  Orleans  a  package 
received  by  it  on  the  23d  da}'  of  April,  1862,  at  Jackson,  Tennessee  ; 
places  the  transit  between  which  requires  only  about  one  da}'.  The 
company  pleaded  that  when  the  package  was  received  "  it  was  agreed 
between  the  company  and  the  plaintiff,  and  made  one  of  the  express 
conditions  upon  which  the  package  was  received,  that  the  company 
should  not  be  held  liable  for  any  loss  of,  or  damage  to,  the  package 
whatever,  unless  claim  should  be  made  therefore  within  ninety  days 
from  its  deliver}'  to  it."  The  plea  further  averred  that  no  claim  was 
made  upon  the  defendant,  or  upon  any  of  its  agents,  until  the  year 
1868,  more  than  ninety  days  after  the  delivery  of  the  package  to  the 
company,  and  not  until  the  present  suit  was  brought.  To  the  plea 
thus  made  the  plaintiff  demurred  generally,  and  the  Circuit  Court  sus- 
tained the  demurrer,  giving  judgment  thereon  against  the  company. 
Whether  this  judgment  was  correct  was  the  question  now  to  be  passed 
on  here. 

Strong,  J.  Notwithstanding  the  great  rigor  with  which  courts  of 
law  have  always  enforced  the  obligations  assumed  by  common  carriers, 
and  notwithstanding  the  reluctance  with  which  modifications  of  that 
responsibility,  imposed  upon  them  by  public  policy,  have  been  allowed, 
it  is  undoubtedly  true  that  special  contracts  with  their  employers  limit- 
ing their  liability  are  recognized  as  valid,  if  in  the  judgment  of  the 
courts  they  are  just  and  reasonable — if  they  are  not  in  conflict  with 
sound  legal  policy.  The  contract  of  a  common  carrier  ordinarily  is  an 
assumption  by  him  of  the  exact  duty  which  the  law  affixes  to  the  rela- 
tion into  which  he  enters  wlien  he  undertakes  to  carry.  That  relation 
the  law  regards  as  substantially  one  of  insurance  against  all  loss  or  dam- 
age except  such  as  results  from  what  is  denominated  the  act  of  God  or 
of  the  public  enemy.  But  the  severe  operation  of  such  a  rule  in  some 
cases  has  led  to  a  relaxation  of  its  stringency,  when  the  consignor  and 
the  carrier  agree  to  such  a  relaxation.  All  the  modern  authorities  concur 
in  holding  that,  to  a  certain  extent,  the  extreme  liability  exacted  by 
the  common  law  originally  may  be  limited  by  express  contract.  The 
difficulty  is  in  determining  to  what  extent,  and  here  the  authorities 
differ.  Certainly  it  ought  not  to  be  admitted  that  a  common  carrier 
can  be  relieved  from  the  full  measure  of  that  responsibility  which 
ordinarily  attends  his  occupation  without  a  clear  and  express  stipula- 
tion to  that  effect  obtained  by  him  from  his  employer.  And  even  wlien 
such  a  stipulation  has  been  obtained  the  court  must  be  able  to  see  that 
it  is  not  unreasonable.     Common  carriers  do  not  deal  with  their  em- 


EXPRESS  COMPANY  V.    CALDWELL.  521 

plovers  on  equal  terms.  There  is,  in  a  ver}'  important  sense,  a  neces- 
sity, for  their  employment.  In  many  cases  they  are  corporations 
chartei'ed  for  the  promotion  of  the  public  convenience.  The}'  have 
possession  of  the  railroads,  canals,  and  means  of  trans[)ortation  on  the 
rivers.  Tliey  can  and  tliev  do  carry  at  much  cheaper  rates  tlian  those 
which  private  carriers  must  of  necessity  demand.  They  have  on  all 
important  routes  supplanted  pi'ivate  carriers.  In  fact  they  are  without 
competition,  except  as  between  themselves,  and  that  they  are  thus  is  in 
most  cases  a  consequence  of  advantages  obtained  from  the  public.  It 
is,  therefore,  just  that  the}'  are  not  allowed  to  take  advantage  of  their 
powers,  and  of  the  necessities  of  the  public  to  exact  exemptions  from 
that  measure  of  dut}'  which  public  policy  demands.  But  that  which 
was  public  polic}'  a  hundred  years  ago  has  undergone  changes  in  the 
progress  of  material  and  social  civilization.  There  is  less  danger  than 
there  was  of  collusion  with  highwa3'men.  Intelligence  is  more  rapidl}' 
diffused.  It  is  more  easy  to  trace  a  consignment  than  it  was.  It  is 
more  difficult  to  conceal  a  fraud.  And,  what  is  of  equal  importance, 
the  business  of  common  carriers  has  been  immensely  increased  and 
subdivided.  The  carrier  who  receives  goods  is  very  often  not  the  one 
who  is  expected  to  deliver  them  to  the  ultimate  consignees.  He  is  but 
one  link  of  a  chain.  Thus  his  hazard  is  greatly  increased.  His  em- 
ployers demand  that  he  shall  be  held  responsible,  not  merel}'  for  his 
own  acts  and  omissions,  and  those  of  his  agents,  ])ut  for  those  of 
other  carriers  whom  he  necessarily  employs  for  completing  the  transit 
of  the  goods.  Hence,  as  we  liave  said,  it  is  now  the  settled  law  tliat 
the  responsibility  of  a  common  carrier  may  be  limited  by  an  express 
agreement  made  with  his  employer  at  the  time  of  his  accepting  goods 
for  transportation,  provided  the  limitation  be  such  as  the  law  can 
recognize  as  reasonable  and  not  inconsistent  with  sound  public  polic}'. 
This  subject  has  been  so  full}'  considered  of  late  in  tliis  court  that  it  is 
needless  to  review  the  authorities  at  large.  In  York  Company  v.  The 
Central  Railroad  Compan}',  3  Wall.  107,  it  is  ruled  that  the  common- 
law  liability  of  a  common  carrier  ma}'  be  limited  and  qualified  hy 
special  contract  with  the  owner,  provided  such  special  contract  do  not 
attempt  to  cover  losses  by  negligence  or  misconduct.  And  in  a  still 
later  case,  Railroad  Company  v.  Lockwood,  17  Wall.  357,  where  the 
decisions  are  extensively  reviewed,  the  same  doctrine  is  asserted.  The 
latter  case,  it  is  true,  involved  mainly  an  inquiry  into  the  reasonable- 
ness of  an  exception  stipulated  for,  but  it  imequivocally  accepted  the 
rule  asserted  in  the  first  mentioned  case.  The  question,  then,  which  is 
presented  to  us  by  this  record  is,  whether  the  stipulation  asserted  in 
the  defendant's  plea  is  a  reasonable  one,  not  inconsistent  with  sound 
public  policy. 

It  may  be  remarked,  in  tlie  first  place,  that  the  stipulation  is  not  a 
conventional  limitation  of  the  right  of  the  carrier's  employer  to  sue. 
He  is  left  at  liberty  to  sue  at  any  time  within  the  period  fixed  by  the 
statute  of  limitations.     He  is  only  required  to  make  his  claim  within 


522  EXPRESS    COMPANY   V.   CALDWELL. 

ninety  days,  in  season  to  enable  tlie  carrier  to  ascertain  what  the  facts 
are,  and  having  made  his  claim,  he  may  delay  his  suit. 

It  may  also  be  remarl^ed  that  the  contract  is  not  a  stipulation  for 
exemption  from  responsibility  for  tlie  defendants'  negligence,  or  for 
that  of  tlieir  servants.  It  is  freely  conceded  that  had  it  been  such,  it 
would  have  been  against  the  policy  of  the  law,  and  inoperative.  Such 
was  our  opinion  in  Railroad  Company  v.  Lockwood.  A  common 
carrier  is  always  responsible  for  his  negligence,  no  matter  what  his 
stii)ulations  may  be.  But  an  agreement  that  in  case  of  failure  by  the 
carrier  to  deliver  the  goods,  a  claim  sliall  be  made  by  the  bailor,  or  by 
the  consignee,  within  a  specified  period,  if  that  period  be  a  reasonable 
one,  is  altogether  of  a  different  character.  It  contravenes  no  public 
policy.  It  excuses  no  negligence.  It  is  perfectly  consistent  with  hold- 
ing the  carrier  to  the  fullest  measure  of  good  faith,  of  diligence,  and 
of  capacity,  which  the  strictest  rules  of  the  common  law  ever  required. 
And  it  is  intrinsically  just,  as  applied  to  the  present  case.  The  defend- 
ants are  an  express  company'.  We  cannot  close  our  eyes  to  the  nature 
of  their  business.  Thej-  carry  small  parcels,  easily  lost  or  mislaid  and 
not  easily  traced.  They  carrj'  them  in  great  numbers.  Express  com- 
panies are  modern  conveniences,  and  notoriously  they  are  very  largel}' 
employed.  They  may  carry,  thev  often  do  carry  hundreds,  even 
thousands  of  packages  dailv.  If  one  be  lost,  or  alleged  to  be  lost,  the 
difliculty  of  tracing  it  is  increased  b}'  the  fact  that  so  many  are  carried, 
and  it  becomes  greater  the  longer  the  search  is  delayed.  If  a  bailor 
ma}'  delay  giving  notice  to  them  of  a  loss,  or  making  a  claim  indefi- 
nitely, they  may  not  be  able  to  trace  the  parcels  bailed,  and  to  recover 
them,  if  accidentally  raissent,  or  if  they  have  in  fact  been  properl}'' 
delivered.  With  the  bailor  the  bailment  is  a  single  transaction,  of 
which  he  has  full  knowledge  ;  with  the  bailee,  it  is  one  of  a  multitude. 
There  is  no  hardship  in  requiring  the  bailor  to  give  notice  of  the  loss  if 
any,  or  make  a  claim  for  compensation  within  a  reasonable  time  after 
he  has  delivered  the  parcel  to  the  carrier.  There  is  great  hardship  in 
requiring  the  carrier  to  account  for  the  parcel  long  after  that  time, 
when  he  has  had  no  notice  of  an}'  failure  of  duty  on  his  part,  and  when 
the  lapse  of  time  has  made  it  difficult,  if  not  impossible  to  ascertain  the 
actual  facts.  For  these  reasons  such  limitations  have  been  held  valid 
in  similar  contracts,  even  when  they  seem  to  be  less  reasonable  than 
in  the  contracts  of  common  carriers. 

Policies  of  fire  insurance,  it  is  well  known,  usually  contain  stipula- 
tions that  the  insured  shall  give  notice  of  a  loss,  and  furnish  proofs 
thereof  within  a  brief  period  after  the  fire,  and  it  is  undoubted  that  if 
such  notice  and  proofs  have  not  been  given  in  the  time  designated  or 
have  not  been  waived,  the  insurers  are  not  liable.  Such  conditions 
have  always  been  considered  reasonable,  because  they  give  the  in- 
surers an  opportunity  of  inquiring  into  the  circumstances  and  amount 
of  the  loss,  at  a  time  when  in(juiry  may  be  of  service.  And  still  more, 
conditions  in  policies  of  fire  insurance  that  no  action  shall  be  brought 


EXPRESS    COMPANY   V.    CALDWELL.  523 

for  the  recovery  of  a  loss  unless  it  shall  be  commenced  within  a  speci- 
fied lime,  less  than  the  statutory  period  of  limitations,  are  enforced, 
as  not  against  any  legal  policy.  See  Riddlesbarger  v.  Hartford  Insur- 
ance Co.,  7  Wall.  386,  and  the  numerous  cases  therein  cited. 

Telegraph  companies,  though  not  common  carriers,  are  engaged  in  a 
business  that  is  in  its  nature  almost,  if  not  quite,  as  important  to  the 
public  as  is  that  of  carriers.  Like  common  carriers  they  cannot  con- 
tract with  their  employers  for  exemption  from  liability  for  the  conse- 
quences of  their  own  negligence.  But  they  may  by  such  contracts,  or 
by  their  rules  and  regulations  brought  to  the  knowlege  of  their  em- 
ployers, limit  tlie  measure  of  their  responsibility  to  a  reasonable  extent. 
Whether  their  rules  are  reasonable  or  unreasonable  must  be  determined 
with  reference  to  public  policy,  precisely  as  in  the  case  of  a  carrier. 
And  in  Wolf  v.  The  Western  Union  Telegraph  Co.,  62  Penn.  St.  83,  a 
case  where  one  of  the  conditions  of  a  telegraph  company,  printed  in 
their  blank  forms,  was  that  the  company  would  not  be  lial)le  for  dam- 
ages in  any  case  where  the  claim  was  not  presented  in  writing  within 
sixty  days  after  sending  the  message,  it  was  ruled  that  the  condition 
was  binding  on  an  employer  of  the  company  who  sent  his  message  on 
the  printed  form.  The  condition  printed  in  the  form  was  considered  a 
reasonalile  one,  and  it  was  held  that  the  employer  must  make  claim 
according  to  the  condition,  before  he  could  maintain  an  action.  Ex- 
actly the  same  doctrine  was  asserted  in  Young  v.  The  Western  Union 
Telegraph  Co.,  34  N.  Y.  Super.  Ct.  390. 

In  Lewis  v.  The  Great  Western  Railway  Co.,  5  H.  &  N.  867,  which 
was  an  action  against  the  company  as  common  carriers,  the  court 
sustained  as  reasonable  stipulations  in  a  bill  of  lading,  that  "  no  claim 
for  dcficienc}',  damage,  or  detention  would  be  allowed,  unless  made 
within  three  days  after  the  deliver}-  of  the  goods,  nor  for  loss,  uu.li»ss 
made  within  seven  days  from  the  time  they  should  have  been  delivered." 
Under  the  last  clause  of  this  condition  the  onus  was  imposed  upon  the 
shipper  of  ascertaining  whether  the  goods  had  been  delivered  at  the 
time  they  should  have  been,  and  in  case  they  had  not,  of  making  his 
claim  within  seven  days  thereafter.  In  the  case  we  have  now  in  hand 
the  agreement  pleaded  allowec  ninety  days  from  the  delivery  of  the 
parcel  to  the  company,  within  which  the  claim  might  be  made,  and  no 
claim  was  made  until  four  3'ears  thereafter.  Possibly  such  a  coiidiiion 
miglit  be  regarded  as  unreasonable,  if  an  insufficient  time  were  allowed 
for  the  shipper  to  learn  whether  the  carrier's  contract  had  been  per- 
formed.^ But  that  cannot  be  claimed  here.  The  parcel  was  received 
at  Jackson,  Tennessee,  for  deliver^'  at  New  Orleans.  The  transit  re- 
quired onl}'  about  one  day.  We  think,  therefore,  the  limitation  of  liie 
defendants'  common-law  liability  to  which  the  parties  agreed,  as  avei'red 
ill  the  plea,  was  a  reasonable  one,  and  that  the  plea  set  up  a  sufficient 
defence  to  the  action. 

1  See  Garton  v.  B.  &  E.  Ry.,  1  B.  &  S.  112  ;  Capehart  i;.  S.  &  R.  R.  R.,  81  N.  C. 
438  ;  Adams  Exp.  Co.  v.  Reagan,  29  Ind.  21.  See  Gleun  v.  Southern  Exp.  Co.,  86 
Tenn.  594.— Ed. 


524  EXPRESS    COMPANY   V.    CALDWELL. 

We  have  been  referred  to  one  case  which  seems  to  intimate,  and 
perhaps  should  be  regarded  as  deciding  that  a  stipulation  somewhat 
like  that  pleaded  here  is  insufficient  to  protect  the  carrier.  It  is  the 
Southern  Express  Company  v.  Cai)erton,  44  Ala.  101.  There  the 
receipts  for  the  goods  contained  a  provision  that  there  should  be  no 
liabilit}'  for  any  loss  unless  the  claim  therefor  should  be  made  in  writ- 
ing, at  the  office  of  the  compan}-  at  Stevenson,  within  thirty  days  from 
the  date  of  the  receipt,  in  a  statement  to  which  the  receipt  should  be 
annexed.  The  receipt  was  signed  bj"  the  agent  of  the  company  alone. 
It  will  be  observed  that  it  was  a  much  more  onerous  requirement  of 
the  shipper  than  that  made  in  the  present  case,  and  more  than  was 
necessary  to  give  notice  of  the  loss  to  the  carrier.  The  court,  after 
remarking  that  a  carrier  cannot  avoid  his  responsibility  bv  any  mere 
general  notice,  nor  contract  for  exemption  from  liability  for  his  negli- 
gence or  that  of  his  servants,  added  that  he  could  not  be  allowed  to 
make  a  statute  of  limitations  so  short  as  to  be  capable  of  becoming  a 
means  of  fraud  ;  that  it  was  the  duty  of  the  "  defendant  to  deliver  the 
package  to  the  consignee,  and  that  it  was  more  than  unreasonable  to 
allow  it  to  appropriate  the  property  of  another  b}'  a  failure  to  perform 
a  duty,  and  that  too  under  the  protection  of  a  writing  signed  only  by 
its  agent,  the  assent  to  which  b}'  the  other  party  was  only  proven  by 
his  acceptance  of  the  paper."  This  case  is  a  very  unsatisfactory  one. 
It  appears  to  have  regarded  the  stipulation  as  a  statute  of  limitations, 
which  it  clearly  was  not,  and  it  leaves  us  in  doul^t  whether  the  decision 
was  not  rested  on  the  ground  that  there  was  no  sufficient  evidence  of  a 
contract.  The  case  cited  from  36  Ga.  532,  has  no  relation  to  the 
question  before  us.  It  has  reference  to  the  inquir}-,  what  is  sufficient 
proof  of  an  agreement  between  the  shipper  and  the  carrier,  an  inquiry 
that  does  not  arise  in  the  present  case,  for  the  demurrer  admits  an 
express  agreement. 

Our  conclusion,  then,  founded  upon  the  analogous  decisions  of  courts, 
as  well  as  upon  sound  reason,  is  that  the  express  agreement  between 
the  parties  averred  in  the  plea  was  a  reasonable  one,  and  hence  that  it 
was  not  against  the  policy  of  the  law.  It  purported  to  relievo  the  de- 
fendants from  no  part  of  the  obligations  of  a  common  carrier.  They 
were  bound  to  the  same  diligence,  fidelitv,  and  care  as  thev  would 
have  been  required  to  exercise  if  no  such  agreement  had  been  made. 
All  that  the  stipulation  required  was  that  the  shipper,  in  case  the 
package  was  lost  or  damaged,  should  assert  his  claim  in  season  to 
enable  the  defendants  to  ascertain  the  facts;  in  other  words,  that  he 
should  assert  it  within  ninety  days.  It  follows  that  the  Circuit  Court 
erred  in  sustaining  the  plaintiff's  demurrer  to  the  plea. 

Judgment  reversed,  <i)id  the  cause  remanded  for  further  ji^'O- 
ceedings^  i?i  conformitu  with  this  opinion.^ 

I  See  W.  U.  T.  Co.  v.  Dunfield.  11  Col.  335;  Rlack  v.  W.  S.  L.  &  P.  Ry.,  Ill 
111.  351  ;  S|)ra<rue  v.  M.  P.  Ry.,  34  Kans.  347.  See  also  Western  Ry.  v.  Little,  86  Ala. 
159  ;  Phifer  >'.  C.  C.  Ry.,  89  N.  C.  31 1.  —  Ed. 


PEIMROSE   V.  WESTERN   UNION   TELEGRAPH   CO.  525 


PRIMROSE  V.  WESTERN  UNION   TELEGRAPH   CO. 

Supreme  Court  of  the  United  States,  1894. 

[154  U.S.  1.] 

Gray,  J.^  This  was  an  action  by  the  sender  of  a  telegraphic  mes- 
sage against  the  telegraph  company  to  recover  damages  for  a  mistake 
in  the  transmission  of  the  message,  which  was  in  cipher,  intelligible 
only  to  the  sender  and  to  his  own  agent,  to  whom  it  was  addressed. 
Tlie  plaintiff  paid  the  usual  rate  for  this  message,  and  did  not  pay  for 
a  repetition  or  insurance  of  it. 

The  l)lank  form  of  message,  which  the  plaintiff  filled  up  and  signed, 
and  which  was  such  as  he  had  constantly  used,  had  upon  its  face,  im- 
mediately above  the  place  for  writing  the  message,  tlie  printed  words, 
"•  Send  the  following  message  subject  to  the  terms  on  back  hereof, 
which  are  hereby  agreed  to;  "  and,  just  below  the  place  for  his  sig- 
nature, this  line  :  — 

"  1^^  Read  the  notice  and  agreement  on  back  of  this  blank. "^^a" 

Upon  the  back  of  the  blank  were  conspicuously  printed  the  words, 
"All  messages  taken  by  this  company  are  subject  to  the  following 
terms,"  which  contained  the  following  conditions  or  restrictions  of  the 
liability  of  the  company  : 

''  [1st.]  To  guard  against  mistakes  or  delaj's,  the  sender  of  a  mes- 
sage should  order  it  REPEATED  ;  that  is,  telegraphed  back  to  the 
original  office  for  comparison.  For  this,  one  half  the  regular  rate  is 
charged  in  addition.  It  is  agreed  between  the  sender  of  the  following 
message  and  this  company,  that  said  company  shall  not  be  liable  for 
mistakes  or  delays  in  the  transmission  or  deliver}',  or  for  non-deliverv, 
of  any  unrepeated  message,  whether  happening  by  negligence  of  its 
servants  or  otherwise,  beyond  the  amount  received  for  sending  the 
same  ; 

"  [2d.]  nor  for  mistakes  or  delays  in  the  transmission  or  delivery, 
or  for  non-delivery,  of  any  repeated  message,  beyond  fiftv  times  the 
sum  received  for  sending  the  same,  unless  special!}'  insured  ; 

"  [3d.]  nor  in  any  case  for  delays  arising  from  unavoidable  inter- 
ruption in  the  working  of  its  lines,  or  for  errors  in  cipher  or  obscure 
messages." 

After  stating  the  rates  at  which  correctness  in  the  transmission  of  a 
message  ma}'  be  insured,  it  is  provided  that  "  no  employee  of  the  com- 
l)any  is  authorized  to  vary  the  foregoing." 

"  [4th.]  The  company  will  not  be  liable  for  damages  or  statutory 
penalties  in  any  case  where  the  claim  is  not  presented  in  writing  within 
sixty  days  after  the  message  is  filed  with  the  company  for  transmission." 

The  conditions  or  restrictions,  the   reasonableness  and   validity  of 

^  Part  of  the  opinion,  discussing  the  measure  of  damages,  is  omitted.  —  Ed. 


526  PRIMROSE   V.   WESTERN   UNION   TELEGRAPH   CO. 

whicli  are  directly  involved  in  this  case,  are  that  part  of  the  first,  by 
wliich  the  corapan}-  is  not  to  be  liable  for  mistakes  in  the  transmission 
or  delivery  of  an}-  message,  beyond  the  sum  received  for  sending  it, 
unless  the  sender  orders  it  to  be  repeated  by  lieing  telegraphed  back  to 
the  originating  office  for  comparison,  and  pays  half  that  sum  in  ad- 
dition ;  and  that  part  of  the  third,  by  which  the  company  is  not  to  be 
liable  at  all  for  errors  in  cipher  or  obscure  messages. 

Telegraph  companies  resemble  railroad  companies  and  other  common 
carriers,  in  that  they  are  instruments  of  commerce  ;  and  in  that  they 
exercise  a  public  employment,  and  are  therefore  bound  to  serve  all  cus- 
tomers alike,  without  discrimination.  They  have,  doubtless,  a  duty 
to  the  public,  to  receive,  to  the  extent  of  their  capacity,  all  messages 
clearly  and  intelligibly  written,  and  to  transmit  them  upon  reasonable 
terms.  But  they  are  not  common  carriers  ;  their  duties  are  different, 
and  are  performed  in  different  ways  ;  and  the}'  are  not  subject  to  the 
same  liabilities.  Express  Co.  v.  Caldwell,  21  Wall.  264,  269,  270  ; 
Telegraph  Co.  v.  Texas,  105  U.  S.  460,  464. 

The  rule  of  the  common  law,  by  which  common  carriers  of  goods  are 
held  liable  for  loss  or  injury  b}-  any  cause  whatever,  except  the  act  of 
God,  or  of  public  enemies,  does  not  extend  even  to  warehousemen  or 
wharfingers,  or  to  an}'  other  class  of  bailees,  except  innkeepers,  who, 
like  carriers,  iiave  peculiar  o|)portunities  fur  embezzling  the  goods  or 
for  collusion  with  thieves.  The  carrier  has  tlie  actual  and  manual  pos- 
session of  the  goods ;  the  identity  of  the  goods  which  he  receives  with 
those  which  he  delivers  can  hardly  he  mistaken  ;  their  value  can  be 
easily  estimated,  and  may  be  ascertained  by  inquiry  of  the  consignor, 
and  the  carrier's  compensation  fixed  accordingly  ;  and  his  liability  in 
damages  is  measured  by  the  value  of  the  goods. 

But  telegraph  companies  are  not  bailees,  in  any  sense.  They  are 
intrusted  with  nothing  hut  an  order  of  message,  which  is  not  to  be 
carried  in  the  form  or  characters  in  which  it  is  received,  but  it  is  to  be 
translated  and  transmitted  through  different  symbols  by  means  of  elec- 
tiicity,  and  is  peculiarly  liable  to  mistakes.  The  message  cannot  be  the 
subject  of  embezzlement ;  it  is  of  no  intrinsic  value ;  its  importance 
cannot  be  estimated,  except  by  the  sender,  and  often  cannot  be  dis- 
closed by  him  without  danger  of  defeating  his  purpose;  it  may  be 
wholly  valueless,  if  not  forwarded  immediately ;  and  the  measure  of 
damages,  for  a  failure  to  transmit  or  deliver  it,  has  no  relation  to  any 
value  of  the  message  itself,  except  as  such  value  may  be  disclosed  by 
the  message,  or  be  agreed  between  the  sender  and  the  company. 

As  said  by  Mr.  Justice  Strong,  speaking  for  this  court,  in  Express 
Co.  V.  Caldwell,  above  cited  :  "  Like  common  carriers  they  cannot  con- 
tract with  their  employers  for  exemption  from  liability  for  the  conse- 
quences of  their  own  negligence.  But  they  may  by  such  contracts, 
or  by  their  rules  and  regulations  brought  to  the  knowledge  of  their 
employers,  limit  the  measure  of  their  responsibility  to  a  reasonable  ex- 
tent.    Whether  their   rules  are    reasonable  or  unreasonable   must  be 


PKIMROSE   V.   WESTERN   UNION   TELEGEAPH   CO.  527 

determined  with  reference  to  public  polic}',  preciselj'  as  in  the  case  of  a 
carrier." 

By  the  settled  law  of  this  court,  common  carriers  of  goods  or  passen- 
gers cannot,  b}'  any  contract  with  their  customers,  wholly  exempt 
tbemselves  from  liabilit}^  for  damages  caused  b}'  the  negligence  of 
themselves  or  their  servants.  Railroad  Co.  v.  Lockwood,  17  Wall. 
357;  Liverpool  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  442,  and 
cases  cited. 

But  even  a  common  carrier  of  goods  may,  by  special  contract  with 
the  owner,  restrict  the  sum  for  which  he  may  be  liable,  even  in  case  of 
a  loss  by  the  carriers  negligence  ;  and  this  upon  the  distinct  ground,  as 
stated  by  Mr.  Justice  Blatchford,  speaking  for  the  whole  court,  that 
"  Where  a  contract  of  the  kind,  signed  by  the  shipper,  is  fairly  made, 
agreeing  on  the  valuation  of  the  property  carried,  with  the  rate  of 
freight  based  on  the  condition  that  the  carrier  assumes  liability  onl}'  to 
the  extent  of  the  agreed  valuation,  even  in  case  of  loss  or  damage  by 
the  negligence  of  the  carrier,  the  contract  will  be  u[)held  as  a  proper 
and  lawful  mode  of  securing  a  due  proportion  between  the  amount  for 
which  the  carrier  may  be  responsible  and  the  freight  he.  receives,  and 
of  protecting  himself  against  extravagant  and  fiinciful  valuations." 
Hart  V.  Pennsylvania  Railroad,  112  U.  S.  331,  343. 

B}'  the  regulation  now  in  question,  the  telegraph  compan}*  has  not 
undertaken  to  wholly  exem|)t  itself  from  liabilit}'  for  negligence  ;  but 
onl}'  to  require  the  sender  of  the  message  to  have  it  repeated,  and  to 
pa}'  half  as  much  again  as  the  usual  price,  in  order  to  hold  the  com- 
pany liable  for  mistakes  or  delays  in  transmitting  or  delivering,  or  for 
not  delivering  a  message,  whether  happening  by  negligence  of  its  ser- 
vants, or  otherwise. 

In  Western  Union  Tel.  Co.  v.  Hall,  124  U.  S.  444,  453,  the  effect  of 
such  a  regulation  was  presented  by  the  certificate  of  the  Circuit  Court, 
but  was  not  passed  upon  bj-  this  court,  because  it  was  of  opinion  that 
upon  the  facts  of  the  case  the  damages  claimed  were  too  uncertain  and 
remote. 

But  the  reasonableness  and  validit}'  of  such  regulations  have  been 
upheld  in  McAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  3,  and  in  Baxter  v. 
Dominion  Tel.  Co.,  37  U.  C.  Q.  B.  470,  as  well  as  by  the  great  pre- 
IDonderance  of  authority  in  this  countr}-.  Onl}'  a  few  of  the  principal 
cases  need  be  cited. ^ 

The  only  cases,  cited  by  the  plaintiff,  in  which,  independently  of 
statute,  a  stipulation  that  the  sender  of  a  message,  if  he  would  hold  the 
company  liable  in  damages  bcN'ond  the  sum  paid,  must  have  it  repeated 
and  pay  half  that  sum  in  addition,  has  been  held  against  public  policy 

1  The  learned  jiidge  cited,  to  the  same  effect,  Camp  v.  W.  U.  T.  Co.,  1  Met.  (Ky.) 
164 ;  W.  U.  T.  Co.  v.  Carew,  15  Mich.  525;  Biruey  v.  N.  Y.  &  W.  T.  Co.,  18  Md.  341  ; 
U.  S.  T.  Co.  ('.  Gildersleeve,  29  Md.  232  ;  Pa.-ismore  v.  W.  U.  T.  Co.,  9  Phila.  90,  78  Pa. 
246;  W.  U.  T.  Co.  v.  Stevenson,  128  Pa.  442;  Bree,se  v.  U.  S.  T.  Co.,  48  N.  Y.  132; 
Kiley  v.  W.  U.  T.  Co.,  109  N.  Y.  231  ;  and  other  cases.  —  Ed. 


528  PRIMROSE   V.   WESTERN   UNION   TELEGRAni   CO. 

and  void,  appear  to  be  Tyler  v.  Western  Union  Tel.  Co.,  60  Illinois, 
421,  and  74  Illinois,  168;  Ayer  v.  Western  Union  Tel.  Co.,  79  Maine, 
493  ;  Telegraph  Co.  v.  Griswold,  37  Ohio  St.  301  ;  Western  Union  Tel. 
Co.  V.  Crall,  38  Kansas,  679  ;  Western  Union  Tel.  Co.  v.  Howell,  38 
Kansas,  685  ;  and  a  charge  to  the  jury  by  Mr.  Justice  Woods,  when 
circuit  judge,  as  reported  in  Dorgan  v.  Telegraph  Co.,  1  Amer.  Law 
Times  (N.  8.),  406,  and  not  included  in  his  own  reports. 

The  fullest  statement  of  reasons,  perhaps,  on  that  side  of  the  ques- 
tion, is  to  be  found  in  Tyler  v.  Western  Union  Tel.  Co.,  above  cited. 

In  that  case,  the  plaintiffs  had  written  and  delivered  to  the  compan}' 
on  one  of  its  blanks,  containing  the  usual  stipulation  as  to  repeating, 
this  message,  addressed  to  a  broker,  "  Sell  one  hundred  (100;  Western 
Union  ;  answer  price."  In  the  message,  as  delivered  by  the  company 
to  the  broker,  the  message  was  changed  by  substituting  "  one  thousand 
(1000)."  It  was  assumed  that  "  Western  Union  "  meant  shares  in  the 
Western  Union  Telegraph  Company.  The  Supreme  Court  of  Illinois 
held  that  the  stipulation  was  "  unjust,  unconscionable,  without  con- 
sideration, and  utterly  void."     60  Illinois,  439. 

The  propositions  upon  which  that  decision  was  based  maj'  be  suf- 
ficiently stated,  in  the  very  words  of  the  court,  as  follows:  '"  Whether 
the  paper  pi'esented  b}-  the  company,  on  which  a  message  is  written  and 
signed  by  the  sender  is  a  contract  or  not,  depends  on  circumstances," 
and  "whether  he  had  knowledge  of  its  terms  and  consented  to  its 
restrictions  is  for  the  jury  to  determine  as  a  question  of  fact  upon  evi- 
dence ainoide."  "  Admitting  the  paper  signed  by  the  plaintitfs  was  a 
contract,  it  did  not,  and  could  not,  exonerate  the  company  from  the  use 
of  ordinar\-  care  and  diligence,  both  as  to  their  instruments  and  the 
care  and  skill  of  their  operators."  "  The  plaintiffs  having  proved  the 
inaccuracy  of  the  message,  the  defendants,  to  exonerate  themselves, 
should  have  shown  how  the  mistake  occurred  ;"  and,  "•  in  the  absence 
of  any  proof  on  their  part,  the  jurj'  should  be  told  the  presumption  was 
a  w^nt  of  ordinary  care  on  the  part  of  the  company."  The  printed 
conditions  could  not  "  protect  this  company  from  losses  and  damage 
occasioned  by  causes  wholh'  within  their  own  control,"  but  '•  must  be 
confined  to  mistakes  due  to  the  infirmities  of  telegraphy,  and  which  are 
unavoidable."     60  Illinois,  431-433. 

The  effect  of  that  construction  would  be  either  to  hold  telegraph 
companies  to  be  subject  to  the  liability  of  common  carriers,  which  the 
court  admitted  in  an  earlier  part  of  its  opinion  that  the}'  were  not;  or 
else  to  allow  to  the  stipulation  no  effect  whatever,  for,  if  they  were  not 
common  carriers,  they  would  not,  even  if  there  were  no  express  stipu- 
lation, be  liable  for  unavoidable  mistakes,  due  to  causes  over  which 
they  had  no  control. 

But  the  final,  and  apparently  the  principal,  ground  for  that  decision 
was  restated  by  the  court,  when  the  case  came  before  it  a  second  time, 
as  follows:  "On  the  question  whether  the  regulation  requiring  mes- 
sages to  be  repeated,  printed  on  the  blank  of  the  company  on  which  a 


PRIMROSE   V.   WESTERN    UNION   TELEGRAPH   CO.  529 

message  is  written,  is  a  contract,  we  held,  it  was  not  a  contract  binding 
in  law,  for  tlie  reason  the  law  imposed  npon  the  companies  duties  to  be 
performed  to  the  public,  and  for  the  performance  of  which  they  were 
entitled  to  a  compensatioa  fixed  by  themselves,  and  which  the  sender 
liad  no  choice  but  to  pa}',  no  matter  how  exorbitant  it  might  be. 
A  niong  these  duties,  we  held,  was  that  of  transmitting  messages  cor- 
rectly ;  that  the  tariff  paid  was  the  consideration  for  the  performance 
of  this  duty  in  each  particular  case,  and  when  the  charges  were  paid 
the  duty  of  the  compan}'  began,  and  there  was,  therefore,  no  considera- 
tion for  the  supposed  contract  requiring  the  sender  to  repeat  the  mes- 
sage at  an  additional  cost  to  him  of  fifty  per  cent  of  the  original 
charges."     7-i  Illinois,   170,   171. 

The  fallacy  in  that  reasoning  appears  to  us  to  be  in  the  assumption 
that  the  company,  under  its  admitted  power  to  fix  a  reasonable  rate  of 
compensation,  establishes  the  usual  rate  as  the  compensation  for  the 
duty  of  transmitting  any  message  whatever.  Whereas,  what  the  com- 
pany has  done  is  to  fix  that  rate  for  those  messages  onl}'  which  are 
transmitted  at  the  risk  of  the  sender ;  and  to  require  payment  of  the 
higher  rate  of  half  as  much  again  if  the  cornpan}'  is  to  be  liable  for  mis- 
takes or  delays  in  the  transmission  or  delivery  or  in  the  non-delivery 
of  a  message. 

Indeed,  that  learned  court  frankly  admitted  that  its  decision  was 
against  the  general  current  of  authoritv,  saying:  "It  must,  however, 
be  conceded  that  there  is  great  harmony  in  the  decisions  that  these 
companies  can  protect  themselves  from  loss,  by  contract,  and  that  such 
a  regulation  as  the  one  under  wliich  appellees  defended,  is  a  reasonable 
regulation  and  amounts  to  a  contract."  And  again:  "We  are  not 
satisfied  with  the  grounds  on  which  a  majority  of  the  decisions  of 
respectable  courts  are  placed."     60  Illinois,  430,  431,  435. 

In  the  case  at  bar,  the  message,  as  appeared  by  the  plaintiff's  own 
testimon}',  was  written  by  him  at  his  office  in  Philadelphia,  upon  one  of 
a  bunch  of  the  defendant's  blanks,  which  he  kept  therefor  the  purpose. 
Although  he  testified  that  he  did  not  remember  to  have  read  the  printed 
matter  on  the  back  he  did  not  venture  to  say  that  he  had  not  read  it; 
still  less,  that  he  had  not  read  the  lirief  and  clear  notices  thereof  upon 
the  face  of  the  message,  both  above  the  place  for  writing  the  message, 
and  below  his  signature.  There  can  be  no  doubt,  therefore,  that  the 
terms  on  the  back  of  the  message,  so  far  as  the}-  were  not  inconsistent 
with  law,  formed  part  of  the  contract  between  him  and  the  company 
under  which  the  message  was  transmitted. 

The  message  was  addressed  by  the  plaintiff  to  his  own  agent  in 
Kansas,  was  written  in  a  cipher  understood  b}'  them  only,  and  was  in 
these  words  :  '•  Despot  am  exceedingly  bus}'  bay  all  kinds  qtio  perhaps 
bracken  half  of  it  mince  moment  promptly  of  purchases."  As  deUvered 
by  the  company  to  the  plaintiff's  agent  in  Kansas,  it  had  the  words 
••  destroy  "  instead  of  •'  despot,"  "  buy  "  instead  of  "  bay,"  and  "  pur- 
chase "  instead  of  "  purchases." 

34 


530  PRIMROSE   V.    WESTERN   UNION    TELEGRAPH   CO. 

The  message  having  been  sent  and  received  on  June  16,  the  mistake, 
in  the  first  word,  of  "  despot"  for  "destroy,"  by  which,  for  a  word 
signifying,  to  those  understanding  the  cipher,  that  the  sender  of  the 
message  had  received  from  the  person  to  whom  it  was  addressed  his 
message  of  June  15,  there  was  substituted  a  word  signifying  that 
his  message  of  June  17  had  been  received  (which  was  evidentl}'  impos- 
sible), could  have  had  no  other  effect  than  to  put  him  on  his  guard  as 
to  the  accuracy  of  the  message  delivered  to  him. 

The  mistake  of  substituting,  for  the  last  word  '* purchase"  in  the 
singular,  the  word  "  purchases "  in  the  plural,  would  seem  to  Ijave 
been  equallj'  unimportant,  and  is  not  suggested  to  have  done  any  harm. 

The  remaining  mistake,  which  is  relied  on  as  the  cause  of  the  injur}' 
for  which  the  plaintift'  seeks  to  recover  damages  in  this  action,  consisted 
in  the  change  of  a  single  letter,  by  substituting  "  u  "  for  "  a,"  so  as  to 
put  "•  buy  "  in  the  place  of  "  ba}'."  By  the  cipher  code,  "  buy"  had 
its  common  meaning,  though  the  message  contained  nothing  to  suggest 
to  any  one,  except  the  sender  or  his  agent,  what  the  latter  was  to  buy  ; 
and  the  word  "  bay,"  according  to  that  code,  had  (what  no  one  without 
its  assistance  could  have  conjectured)  the  meaning  of  "  I  have  bought." 

The  impression  copies  of  the  papers  kept  at  the  defendant's  offices  at 
Bi'ookville  and  Ellis,  in  the  State  of  Kansas  (which  were  annexed  to 
the  depositions  of  operators  at  those  offices,  and  given  in  evidence  by 
the  plaintiff  at  the  trial),  prove  that  the  message  was  dul}'  transmitted 
over  the  greater  part  of  its  route,  and  as  far  as  Brookville  ;  for  they 
put  it  beyond  doul)t  that  the  message,  as  received  and  written  down  by 
one  of  the  operators  at  Brookville,  was  in  its  original  form  ;  and  that, 
as  written  down  b}'  the  operator  at  Ellis,  it  was  in  its  altered  form. 
While  the  testimony  of  the  deponents  is  conflicting,  there  is  nothing  in 
it  to  create  a  suspicion  that  either  of  them  did  not  intend  to  tell  the 
truth.  Nor  is  there  anything  in  the  case,  tending  to  show  that  thei'e 
was  an}'  defect  in  the  defendant's  instruments  or  equipment,  or  tliat 
any  of  its  operators  were  incompetent  persons. 

If  the  change  of  words  in  the  message  was  owing  to  mistake  or  in- 
attention of  an}-  of  the  defendant's  servants,  it  would  seem  that  it  must 
have  consisted  either  in  a  want  of  plainness  of  the  handwriting  of  Tin- 
dall,  the  operator  who  took  it  down  at  Brookville,  or  in  a  mistake  of 
his  fellow  operator,  Stevens,  in  reading  that  writing,  or  in  transmitting 
it  to  Ellis  ;  or  else  in  a  mistake  of  the  operator  at  Ellis,  in  taking  down 
the  message  at  that  place.  If  the  message  had  l)cen  repeated,  the  mis- 
take, from  whatever  cause  it  arose,  must  have  been  detected  by  means 
of  the  differing  versions  made  and  kept  at  the  offices  at  Ellis  and 
Brookville. 

As  has  been  seen,  tlie  only  mistake  of  any  consequence  in  the  trans- 
mission of  the  message  consisted  in  the  change  of  the  word  *"  bay  " 
into  "  buy,"  or  rather  of  the  letter  "  a  "  into  '•  u."  In  ordinary  hand- 
writing, the  likeness  between  these  two  letters,  and  the  likelihood  of 
mistaking  the  one  for  the  other,  especially  when  neither  the  word  nor 


PKIMROSE   V.    WESTERN   UNION   TELEGRAPH   CO.  531 

the  context  has  an}-  meaning  to  the  reader,  are  familiar  to  all ;  and  in 
telegraphic  symbols,  according  to  the  testimony  of  the  only  witness 
upon  the  subject,  the  difference  between  these  two  letters  is  a  single 
dot. 

The  conclusion  is  irresistible,  that  if  there  was  negligence  on  the 
part  of  an}'  of  the  defendant's  servants,  a  jury  would  not  have  been 
warranted  in  finding  that  it  was  more  than  ordinary  negligence ;  and 
that,  upon  principle  and  authority,  the  mistake  was  one  for  which  the 
plaintiff,  not  having  had  the  message  repeated  according  to  the  terms 
printed  upon  the  back  thereof,  and  forming  part  of  his  contract  with 
the  compan}',  could  not  recover  more  than  the  sum  which  he  had  paid 
for  sending  the  single  message. 

It  is  also  to  be  remembered  that,  by  the  third  condition  or  restriction 
in  the  printed  terms  forming  part  of  the  contract  between  these  parties, 
it  is  stipulated  that  the  compan}'  shall  not  be  "  liable  in  any  case  "  "  for 
errors  in  cipher  or  obscure  messages  ;  "  and  that  it  is  further  stipulated 
that  "  no  employee  of  the  company  is  authorized  to  vary  the  fore- 
going," which  evidently  includes  this,  as  well. as  other  restrictions. 

It  is  difficult  to  see  anything  unreasonable,  or  against  public  policy, 
in  a  stipulation  that  if  the  handwriling  of  a  message,  delivered  to  the 
companv  for  transmission,  is  obscure,  so  as  to  be  read  with  difficulty, 
or  is  in  cipher,  so  that  the  reader  has  not  the  usual  assistance  of  the 
context  in  ascertaining  particular  w^ords,  the  com[)an3'  will  not  be  re- 
sponsible for  its  miscarriage,  and  that  none  of  its  agents  shall,  by 
attempting  to  transmit  such  a  message,  make  the  company  responsible. 

As  the  message  was  taken  down  by  the  telegraph  operator  at  Brook- 
ville,  in  the  same  words  in  which  it  was  delivered  by  the  plaintiff  to  the 
company  at  Philadelphia,  it  is  evident  that  no  obscurity  in  the  message, 
as  originally  written  by  the  plaintiff,  had  anj'thing  to  do  with  its  failure 
to  reach  its  ultimate  destination  in  the  same  form. 

But  it  certainl}'  was  a  cipher  message  ;  and  to  hold  that  the  accep- 
tance b}'  the  defendant's  operator  at  Philadelphia  made  the  company 
liable  for  errors  in  its  transmission  would  not  only  disregard  the  ex- 
press stipulation  that  no  employee  of  the  company  could  var}'  the  con- 
ditions of  the  contract,  but  would  wholly  nullify  the  condition  as  to 
cipher  messages,  for  the  fact  that  an}'  message  is  written  in  cipher 
must  be  apparent  to  every  reader.  Judgment  affirmed} 

Fuller,  C.  J.,  and  Harlan,  J.,  dissented. 

1  See,  contra,  Reed  v.  W.  U.  T.  Co.,  135  Mo.  661.  — Ed. 


532  BELGER   V.   DINSMORE. 


BELGER  V.   DINSMORE. 
Commission  of  Appeals,  New  York,  1872. 

[51  N.  Y.  166.] 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  district,  setting  aside  a  verdict  in  favor  of  defendant 
and  granting  a  new  trial.  Reported  below,  51  Barb.  69  ;  34  How. 
Pr.  421. 

The  action  was  brought  to  recover  the  value  of  a  trunk  and  its  con- 
tents delivered  by  the  plaintiff  to  the  defendant  for  transportation,  but 
which  never  reached  its  place  of  destination. 

It  was  shown,  on  the  trial,  that  six  trunks  and  three  boxes  were  de- 
livered on  the  4th  day  of  May,  1864,  by  the  wife  of  the  plaintiff  to  the 
Adams  Express  Company  to  be  carried  from  Baltimore,  Maryland,  to 
Newport,  Rhode  Island. 

When  the  said  trunks  and  boxes  were  received  by  the  companj',  a 
receipt  was  given  therefor.^ 

The  counsel  for  the  plaintiff  then  offered  to  prove  negligence  on  the 
part  of  the  defendant,  insisting  that  it  had  been  guilt}'  of  gross  neg- 
ligence and  carelessness,  but  the  court  exchided  such  proof,  and  held 
that  the  said  receipt  was,  to  all  intents  and  purposes,  a  contract  be- 
tween the  parties,  and  tliat  defendant  was  by  it  excused  from  all  liabil- 
it}',  except  as  stated  in  the.  receipt.  To  this  ruling  the  counsel  for  the 
plaintiff  excepted. 

The  court  then,  after  the  refusal  of  a  request  by  the  plaintiff  to  go  to 
the  jury  on  the  question  of  gross  negligence,  against  his  exception, 
charged  the  jury  that  the  contents  of  the  said  receipt  were  a  contract 
binding  on  the  plaintiff,  and  limited  the  liability  of  the  Adams  Express 
Compan}',  and  of  the  defendant  for  any  loss  of  or  damage  to  any  of  the 
contents  of  an}'  of  the  trunks  or  boxes  specified  in  said  receipt  to  the 
sum  of  fifty  dollars,  and  directed  tlie  jury  to  find  a  verdict  for  the  plain- 
tiff for  fifty  dollars  principal,  with  interest  from  the  date  of  the  re- 
ceipt.    To  which  charge  and  direction  the  plaintiff's  counsel  excepted. 

The  court  ordered  the  exceptions  to  be  heard  in  the  first  instance  at 
General  Term,  and  that  judgment  be  in  the  meantime  suspended. 

LoTT,  C.  C.  The  parties  appear  to  agree  upon  two  propositions,  as 
established  by  the  decision  of  the  courts  in  this  State. 

1st.  That  the  appellant,  the  Adams  P]xpress  Compan}',  is  a  common 
carrier. 

2d.  That  common  carriers  may  limit  their  liability  by  express 
contract. 

The  question,  then,  arises  whether  there  was  such  a  contract  in  this 
case.     The  instrument  relied  on  as  evidence  of  the  contract,  as  has  al- 

^  Part  of  the  case  is  omitted.  —  Ed. 


BELGER   V.   DINSxMORE.  533 

ready  been  stated,  does  not  merely  acknowledge  the  deliver}'  and  receipt 
of  the  property  in  question  to  the  express  compan}'  for  transportation, 
but,  in  connection  therewith,  it  is  declared  to  be  a  part  of  the  terms 
and  conditions  on  which  it  was  received  that  the  company  was  not  to 
be  responsible  for  loss  and  damages  resulting  from  certain  specified 
causes,  unless  proved  to  have  occurred  from  fraud  or  gross  negligence 
of  the  company  or  its  agents  ;  and  that  the  holder  thereof  should  not, 
in  any  event,  demand  beyond  the  sum  of  fift}-  dollars,  fixed  as  the 
value  of  the  article  to  be  carried,  unless  otherwise  expressed.  A  party 
accepting  such  an  instrument,  as  has  been  already  shown,  declares  his 
assent  by  such  acceptance,  to  those  terms  and  conditions.  They 
thereb}'  become  obligatory  on  both  parties,  and  prescribe  their  mutual 
rights  and  obligations. 

On  the  application  of  that  rule  to  this  case,  the  plaintiff  assented  (by 
omitting  to  have  a  different  value  expressed  in  the  instrument)  to  the 
valuation  of  the  property  in  question  at  the  sum  of  fifty  dollars,  and  to 
the  restriction  and  limitation  of  his  claim  and  demand  for  damages,  in 
case  of  its  loss,  at  that  sum.  Such  liquidation  of  its  value  was  for  the 
advantage  of  both  parties,  to  guard  against  controversy  or  difference 
of  opinion  in  estimating  it,  in  case  of  loss  and  damage,  and  as  a  pro- 
tection against  fraud.  It  is  reasonable  to  assume  that  the  price  or 
compensation  for  the  transportation  of  propert}-  has  relation  to  the  re- 
stricted or  limited  liability  assumed  on  agreeing  to  transport  it,  and  is 
to  a  great  degree  regulated  and  graduated  by  its  value  ;  and  if  a  partv 
onl}'  pays  the  price  fixed  for  articles  of  small  value,  or  estimated  at  a 
low  sum,  he  himself  bears  all  risks  beyond  that  value  or  price.  The 
plaintiff  in  this  case  must  be  assumed  to  have  paid  freight  on  the  trunk 
in  question  and  its  contents,  worth  S4fi7,  at  the  rate  prescribed  for  an 
article  not  exceeding  fift}'  dollars  in  value.  He  was  then  willing  and 
agreed  to  assume  all  risks  for  the  excess  in  value,  and  to  relieve  the 
company  from  all  liabiht}'  on  account  thereof  bejond  that  sum.  He 
can  with  no  more  propriety  or  justice  claim  remuneration  therefor  than 
the  company  could  demand  additional  freight  thereon. 

The  rulings  of  the  judge  at  the  circuit  were  in  accordance  with 
those  principles,  and  the  General  Term  appear  to  have  placed  their 
decision,  in  directing  a  new  trial,  on  the  ground  that  the  provision  to 
which  I  have  above  referred,  although  contained  in  the  receipt  itself, 
was  a  notice  merely,  which  it  is  said,  in  the  opinion  of  the  court,  "  at 
most  is  only  a  proposal  for  a  special  contract  which  requires  the  assent 
of  the  other  party."  The  material  fact  in  this  case  appears  to  be  en- 
tirely overlooked,  that  the  plaintiflT,  by  accepting  the  receipt  as  evi- 
dence of  the  defendant's  obligation  and  liability,  gave  his  assent  to 
what  was  considered  as  a  proposal,  and  to  all  its  terms  and  conditions, 
and  that  it  thereby  became  operative  and  effectual  as  a  contract. 

The  views  above  expressed  show  that  the  order  of  General  Term,  in 
setting  aside  the  verdict  and  ordering  a  new  trial,  was  erroneous.  It 
must,  therefore,  be  reversed  and  judgment  on  the  verdict  must  be  ren- 


534  MOULTON    V.    ST.    PAUL,   MINNEAPOLIS,   ETC.    RAILWAY. 

dered   against  the  defendant,  with   the   costs  of  both   appeals  to  the 
appellant. 


All  concur. 


Order  reversed,  and  judgment  accordingly} 


MOULTON  V.   St.   PAUL,  MINNEAPOLIS,  AND   MANITOBA 

RAILWAY. 

Supreme  Court  of  Minnesota,   1883, 
[31  Minn.  85.] 

Dickinson,  J.^  The  plaintiffs  shipped  two  carloads  of  horses  at  St. 
Paul,  over  defendant's  line  of  road,  to  points  in  Dakota.  Two  of  the 
horses  died  by  reason  of  prolonged  ex[)osnre  to  cold  weather,  as  is 
claimed,  caused  by  defendant's  negligent  detention  of  the  train  during 
transportation.  The  action  is  for  the  recovery  of  the  value  of  these  two 
liorses,  which  appears  to  have  been  $200  each.  For  the  purposes  of 
tills  appeal,  we  are  to  consider  the  negligence  of  tlie  defendant  as  es- 
tablished, and  are  to  determine  whether  the  defendant  is  liable  for  its 
negligence,  and  the  measure  or  extent  of  its  liability  under  the  contract 
made  by  the  parties. 

The  contract  under  which  the  property  was  shipped,  and  which  was 
executed  by  both  plaintiffs  and  defendant,  contained  the  provisions 
that  in  consideration  that  the  defendant  would  transport  the  property 
at  the  rate  of  $75  per  carload.  '■•  the  same  l)eing  a  rate  given,  suliject 
to  tlie  conditions  of  this  contract,"  the  plaintiffs  released  the  defendant 
from  the  liability  of  a  common  carrier,  and  from  any  liability  for  any 
delay  in  shipping  the  stock  after  its  deliver}'  to  the  defendant,  and 
agreed  that  the  liabilit}'  of  the  defendant  should  be  only  that  of  a 
private  carrier  for  hire.  The  plaintiffs  contracted  to  assume  all  risk  of 
damage  which  might  be  sustained  by  reason  of  any  delay  in  transporta- 
tion, and  all  risk  of  damage  from  any  other  cause,  not  resulting  from 
the  wilful  negligence  of  the  agents  of  the  defendant.  It  was  further 
agreed  that,  in  case  of  total  loss,  the  damage  should  in  no  case  exceed 
the  sum  of  6100  per  head,  and,  in  case  of  partial  loss,  damage  should 

1  "  If,  without  any  representation  of  value  by  the  shipper,  or  a  request  of  him  for  a 
statement  of  value,  and  without  notice  and  contract,  and  a  valuable  consideration,  the 
carrier  should  place  a  value  upon  the  articles  received  for  carriage,  that  would  not 
bind  the  shipper.  In  such  case,  he  would  clearly  have  the  right  to  recover  the  full 
value  of  the  articles  lost  by  the  carrier. 

"  If,  on  the  other  hand,  for  the  purpose  of  getting  reduced  rates,  the  shipper  should 
place  a  value  upon  tlie  articles  for  carriage,  or  if  by  any  kind  of  artifice  he  should  in- 
duce the  carrier  to  place  a  lower  value  upon  the  articles,  and  thus  gets  reduced  rates, 
it  seems  to  he  settled  by  the  weight  of  authority  that  he  could  not  recover  beyond  the 
value  so  fixed  by  him,  or  the  value  which  by  deceit  he  caused  the  carrier  to  fix.  To 
hold  otherwise  would  be  to  enable  the  sliipper  to  take  advantage  of  his  own  wrong." 
ZoLLAUS,  J.,  iu  Roseufeld  r.  P.  D.  &  E.  Ry.,  103  lud.  VIX.  —Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


MOULTON    V.    ST.   PAUL,   MINNEAPOLIS,   ETC.    RAILWAY.  535 

be  measured  in  the  same  proportion.  A  printed  "  regulation  "  of  the 
defendant,  attached  to  the  contract,  provided  that  the  defendant  would 
not  assume  any  liability  over  $100  per  head  on  horses  and  valuable 
live-stock,  except  by  special  agreement.  By  the  contract  of  the  parties 
the  owner  of  the  horses  attended  and  cared  for  them  upon  the  passage, 
without  extra  charge  for  his  own  transportation.  .  .  . 

The  same  reasons  which  forbid  tiiat  a  common  carrier  should,  even 
by  express  contract,  be  absolved  from  liability  for  his  own  negligence, 
stand  also  in  the  wa}'  of  any  arbitrar\-  preadjustment  of  the  measure  of 
damages,  where  the  carrier  is  partially  relieved  from  such  liability.  It 
would  indeed  be  absurd  to  say  that  the  requirement  of  the  law  as  to 
such  responsibility  of  the  carrier  is  absolute,  and  cannot  be  laid  aside, 
even  by  the  agreement  of  the  parties,  but  that  one-half  or  three-fourths 
of  this  burden,  which  the  law  compels  the  carrier  to  bear,  maj*  be  laid 
aside,  by  means  of  a  contract  limiting  the  recovery  of  damages  to  one- 
half  or  one-fourth  of  the  known  value  of  the  property.  This  would  be 
mere  evasion,  which  would  not  be  tolerated.  Yet  there  is  no  reason 
why  the  contracting  parties  may  not  in  good  faith  agree  upon  the  value 
of  the  property  presented  for  transportation,  or  fairly  liquidate  the 
damages  recoverable  in  accordance  with  the  supposed  value.  Such  an 
agreement  would  not  be  an  abrogation  of  the  requirements  of  the  law, 
but  only  the  application  of  the  law  as  it  is  by  the  parties  themselves  to 
the  circumstances  of  the  particular  case.  But  that  the  requirements  of 
the  law  be'  not  evaded,  and  its  purposes  frustrated,  contracts  of  this 
kind  should  be  closely  scrutinized. 

Upon  the  face  of  the  contract  under  consideration,  it  is  apparent  that 
it  was  not  the  purpose  of  the  parties  to  liquidate  the  damages  recov- 
erable, with  reference  to  the  value  of  the  propert}-  consigned  to  the 
carrier.  Its  provisions  are  somewhat  contradictory,  and  not  easily 
reconciled.  The  general  regulation  attached  to  the  contract,  to  the 
effect  that  the  company  "  will  not  assume  any  liabilitv  over  one  hun- 
dred dollars  per  head  on  horses  and  valuable  live-stock  except  bv  spe- 
cial agreement,"  is  plainly  opposed  to  the  law  as  established,  so  far  as 
regards  the  negligence  of  the  carrier.  As  a  regulation  it  is,  therefore, 
of  no  effect.  The  law  declares  that  the  carrier  shall  be  liable  to  the 
extent  of  the  value  of  the  property,  although  there  be  no  special  agree- 
ment. We  do  not  question  the  right  of  a  carrier  to  require  the  dis- 
closure, by  the  consignor,  of  the  value  of  the  property  presented  for 
transportation,  where  its  value  is  not  apparent  and  well  known.  This 
is  reasonable,  both  to  the  end  that  proper  care  may  be  taken  of  the 
property  while  it  is  in  the  hands  of  the  carrier,  and  because  the  proper 
charges  for  transportation  may  often  depend  largely  upon  value.  "We 
see  nothing,  however,  in  this  contract  which  can  be  regarded  as  having 
l)eon  intended  as  calling  for  such  a  disclosure  on  the  part  of  the  plain- 
tiffs, or  as  estopj)ing  them  from  claiming  a  recovery,  upon  the  ground 
of  the  carrier's  negligence,  of  the  actual  value  of  tlie  hoi'ses.  In  terms, 
the  contract  purports  to  relieve  the  defendant  from  liability,  even  for 


536  HART    V.    PENNSYLVANIA   RAILROAD. 

its  own  negligence,  and,  at  tlie  same  time,  if  a  recover}'  shall  be  had 
notivithstanding  this  agreement,  then  the  amount  of  such  recovery  is 
limited  to  the  sum  of  $100  per  head.  These  stipulations  cannot  natu- 
rall}'  be  applied  to  a  case  involving  as  the  cause  of  action  the  negligence 
of  the  carrier,  without  making  them,  in  effect,  to  be  an  agreement  in 
the  first  place  for  absolute  exemption  from  liability  (except  for  wilful 
negligence)  ;  and  if,  notwithstanding  the  agreed  exemption,  a  recovery 
should  be  awarded,  it  shall  not  exceed  the  sum  named  ;  that  is  to  say 
(as  applied  to  a  case  of  negligence),  it  is,  in  effect,  an  agreement  for 
absolute  exemption,  and,  that  failing  to  be  sustained,  then  for  a  partial 
exemption,  from  the  liabilit}'  which  the  law  imposes  in  such  cases,  and 
which  cannot  be  laid  aside  by  the  mere  consent  of  parties.  Such  a 
contract  cannot  be  sustained.  Order  affirmed. 


HART  u  PENNSYLVANIA   RAILROAD. 

Supreme  Court  of  the  United  States,  1884. 

[112  U.  -S.  331.] 

Blatchford,  J.  It  is  contended  for  the  plaintiff  that  the  bill  of 
lading  does  not  purport  to  limit  the  liability  of  the  defendant  to  the 
amounts  stated  in  it,  in  the  event  of  loss  through  the  negligence  of  the 
defendant.  But  we  are  of  opinion  that  the  contract  is  not  susceptible 
of  that  construction.  The  defendant  receives  the  propert}'  for  transpor- 
tation on  the  terms  and  conditions  expressed,  which  the  plaintiff  ac- 
cepts "  as  just  and  reasonable."  The  first  paragraph  of  the  contract 
is  that  the  plaintiff  is  to  pay  the  rate  of  freight  expressed,  "  on  the 
condition  that  the  carrier  assumes  a  liabilic}'  on  the  stock  to  the  extent 
of  the  following  agreed  valuation  :  If  horses  or  mules,  not  exceeding 
two  hundred  dollars  each.  .  .  .  If  a  chartered  car,  on  the  stock  and 
contents  in  same,  twelve  hundred  dollars  for  the  car-load."  Then  fol- 
low in  the  first  paragraph,  these  words:  "But  no  carrier  shall  be 
liable  for  the  acts  of  the  animals  themselves,  or  to  each  other,  such  as 
biting,  kicking,  goring,  or  smothering,  nor  for  loss  or  damage  arising 
from  condition  of  the  animals  themselves,  which  risks,  being  bej'ond 
the  control  of  the  company,  are  herebj*  assumed  by  the  owner,  and 
the  carrier  released  therefrom."  This  statement  of  the  fact  that  the 
risks  from  the  acts  and  condition  of  the  horses  are  risks  bej'ond  the 
control  of  the  defendant,  and  are,  tlierefore,  assumed  b}-  the  plaintiff, 
shows,  if  more  were  needed  than  the  other  language  of  the  contract, 
that  the  risks  and  liability  assumed  b}'  the  defendant  in  the  remainder 
of  the  same  paragraph  are  those  not  beyond,  but  within,  the  control  of 
the  defendant,  and,  therefore,  applj-  to  loss  through  the  negligence  of 
the  defendant. 


HAET   V.    PENNSYLVANIA   RAILROAD.  537 

It  must  be  presumed  from  the  terms  of  the  bill  of  lading,  and  without 
an}'  evidence  on  the  subject,  and  especially  in  the  absence  of  an}'  evi- 
dence to  the  contrary,  that,  as  the  rate  of  freight  expressed  is  stated 
to  be  on  the  condition  that  the  defendant  assumes  a  liability  to  the  ex- 
tent of  the  agreed  valuation  named,  the  rate  of  freight  is  graduated 
by  the  valuation.  Especially  is  this  so,  as  the  bill  of  lading  is  what  its 
heading  states  it  to  be,  "a  limited  liability  live-stock  contract,"  and 
is  confined  to  live-stock.  Although  the  horses,  being  race-horses,  may, 
aside  from  the  bill  of  lading,  have  been  of  greater  real  value  than 
that  specified  in  it,  whatever  passed  between  the  parties  before  the  bill 
of  lading  was  signed  was  merged  in  the  valuation  it  fixed  ;  and  it  is 
not  asserted  that  the  plaintiff  named  any  value,  greater  or  less,  other- 
wise than  as  he  assented  to  the  value  named  in  the  bill  of  lading,  by 
signing  it.  The  presumption  is  conclusive  that,  if  the  liability  had 
been  assumed  on  a  valuation  as  great  as  that  now  alleged,  a  higher 
rate  of  freight  would  have  been  charged.  The  rate  of  freight  is  in- 
dissolubly  bound  up  with  the  valuation.  If  the  rate  of  freight  named 
was  the  only  one  offered  by  the  defendant,  it  was  because  it  was  a  rate 
measured  by  the  valuation  expressed.  If  the  valuation  was  fixed  at 
that  expressed,  when  the  real  value  was  larger,  it  was  because  the  rate 
of  freight  named  was  measured  by  the  low  valuation.  The  plaintiff 
cannot  claim  a  higher  valuation,  on  the  agreed  rate  of  freight. 

It  is  further  contended  by  the  plaintiff,  that  the  defendant  was  for- 
bidden, by  public  policy,  to  fix  a  limit  for  its  liability  for  a  loss  by 
negligence,  at  an  amount  less  than  the  actual  loss  by  such  negligence. 
As  a  minor  proposition,  a  distinction  is  sought  to  be  drawn  between  a 
case  where  a  sliipper,  on  requirement,  states  the  value  of  the  property, 
and  a  rate  of  freight  is  fixed  accordingly,  and  the  present  case.  It  is 
said,  that,  while  in  the  former  case  the  shipper  may  be  confined  to  the 
value  he  so  fixed,  in  the  event  of  a  loss  by  negligence,  the  same  rule 
does  not  apply  to  a  case  where  the  valuation  inserted  in  the  contract  is 
not  a  valuation  previously  named  by  the  shipper.  But  we  see  no  sound 
reason  for  this  distinction.  The  valuation  named  was  the  "  agreed 
valuation,"  the  one  on  which  the  minds  of  the  parties  met,  however  it 
came  to  be  fixed,  and  the  rate  of  freight  was  based  on  that  valuation, 
and  was  fixed  on  condition  that  such  was  the  valuation,  and  that  the 
liability  should  go  to  that  extent  and  no  further. 

We  are,  therefore,  brought  back  to  the  main  question.  It  is  the  law 
of  this  court,  that  a  common  carrier  may,  by  special  contract,  limit 
bis  common-law  liability ;  but  that  he  cannot  stipulate  for  exemp- 
tion from  the  consequences  of  his  own  negligence  or  that  of  his 
servants.^ 

To  the  views  announced  in  these  cases  we  adhere.  But  there  is  not 
in  them  any  adjudication  on  the  particular  question  now  before  us.     It 

1  The  learned  judge  here  examined  the  foUowinfr  cases.  York  Co.  i;  Central  R. 
R.,  3  Wall  107  ;  U.  R.  v.  Lockwood,  17  \yall.  357  ;  Express  Co.  v.  Caldwell,  21  Wall. 
264  J  Bank  of  Kentucky  v.  Adama  Express  Co.,  93  U.  S.  174.  — Ed. 


538  HAET   V.   PENNSYLVANIA   RAILROAD. 

ma}',  however,  be  disposed  of  on  principles  which  are  well  established 
and  which  do  not  conflict  with  an}-  of  the  rulings  of  tliis  court.  As  a 
general  rule,  and  in  the  absence  of  fraud  or  imposition,  a  common  car- 
rier is  answerable  for  the  loss  of  a  package  of  goods  though  he  is 
ignorant  of  its  contents,  and  though  its  contents  are  ever  so  valuable, 
if  he  does  not  make  a  special  acceptance.  This  is  reasonable,  because 
he  can  always  guard  himself  by  a  special  acceptance,  or  by  insisting  on 
being  informed  of  the  nature  and  value  of  the  articles  before  receiving 
them.  If  the  shipper  is  guilty  of  fraud  or  imposition,  by  misrepresent- 
ing the  nature  or  value  of  the  articles,  he  destroys  his  claim  to  indem- 
nity, because  he  has  attempted  to  deprive  the  carrier  of  the  right  to  be 
compensated  in  proportion  to  the  value  of  the  articles  and  the  conse- 
quent risk  assumed,  and  what  he  has  done  has  tended  to  lessen  the  vigi- 
lance the  carrier  would  otherwise  have  bestowed.  2  Kent's  Coram.  603, 
and  cases  cited  ;  Relf  v.  Rapp,  3  Watts  &  Serg.  21  ;  Dunlap  v.  Inter- 
national Steamboat  Co.,  98  Massachusetts,  371  ;  Railroad  Co.  v.  Fra- 
loff,  100  U.  S.  24.  This  qualification  of  the  liability  of  the  carrier  is 
reasonable,  and  is  as  important  as  the  rule  which  it  qualifies.  There 
is  no  justice  in  allowing  the  shipper  to  be  paid  a  large  value  for  an 
article  which  he  has  induced  the  carrier  to  take  at  a  low  rate  of  freiglit 
on  the  assertion  and  agreement  that  its  value  is  a  less  sum  than  that 
claimed  after  a  loss.  It  is  just  to  hold  the  shipper  to  his  agreement, 
fail!}'  made,  as  to  value,  even  where  the  loss  or  injury  has  occurred 
through  the  negligence  of  the  carrier.  The  effect  of  the  agreement  is 
to  cheapen  the  freight  and  secure  the  carriage,  if  there  is  no  loss  ;  and 
the  effect  of  disregarding  the  agreement,  after  a  loss,  is  to  expose  the 
carrier  to  a  greater  risk  than  the  parties  intended  he  should  assume. 
The  agreement  as  to  value,  in  this  case,  stands  as  if  the  carrier  had 
asked  the  value  of  the  horses,  and  had  been  told  by  the  plaintiff  the 
SUM)  inserted  in  the  contract. 

The  limitation  as  to  value  has  no  tendency  to  exempt  from  liability 
for  negligence.  It  does  not  induce  want  of  care.  It  exacts  from  the 
carrier  the  measure  of  care  due  to  the  value  agreed  on.  The  carrier 
is  bound  to  respond  in  that  value  for  negligence.  The  compensation 
for  carriage  is  based  on  that  value.  The  shipper  is  estopped  from 
saying  that  the  value  is  greater.  The  articles  have  no  greater  value, 
for  the  purposes  of  the  contract  of  transportation,  between  the  parties 
to  that  contract.  The  carrier  must  respond  for  negligence  up  to  that 
value.  It  is  just  and  reasonable  that  such  a  contract,  fairly  entered 
into,  and  where  there  is  no  deceit  practised  on  the  shipper,  should  be 
upheld.  There  is  no  violation  of  public  polic}'.  On  the  contrary,  it 
would  be  unjust  and  unreasonable,  and  would  be  repugnant  to  the 
soundest  principles  of  fair  dealing  and  of  the  freedom  of  contracting, 
and  thus  in  conflict  with  public  polic}',  if  a  shipper  should  be  allowed 
to  reap  the  benefit  of  the  contract  if  there  is  no  loss,  and  to  repudiate 
it  in  case  of  loss. 

Tliis  prinfii)lc  is  not  a  new  one.     In  Gibbon  v.  Paynton,  4  Burrows, 


HART    V.    PENNSYLVANIA   EAILKOAD.  539 

2298,  the  sura  of  £100  was  hidden  in  some  haj-  in  an  old  mail-bag  and 
sent  b}-  a  coach  and  lost.  The  plaintiff  knew  of  a  notice  by  the  pro- 
lirietoi-  that  he  would  not  be  answerable  for  mone}-  unless  he  knew  what 
it  was,  Init  did  not  apprise  proprietor  that  there  was  money  in  the  bag. 
The  defence  was  upheld,  Lord  Mansfield  saying:  "  A  common  carrier, 
in  respect  of  the  premium  he  is  to  receive  runs  the  risk  of  the  goods, 
ruid  must  make  good  the  loss,  though  it  happen  without  any  fault  in 
Iiim,  the  reward  making  him  answerable  for  their  safe  delivery.  His 
wai  raiity  and  insurance  is  in  respect  of  the  reward  he  is  to  receive, 
and  the  reward  ought  to  be  proportionable  to  the  risk.  If  he  makes 
a  greater  warranty  and  insurance,  he  will  take  greater  care,  use  more 
caution,  and  be  at  the  expense  of  more  guards  or  other  methods  of  se- 
curity ;  and,  therefore,  he  ought,  in  reason  and  justice,  to  have  a  greater 
reward."     To  the  same  effect  is  Batson  v.  Donovan,  4  B.  &  A.  21. 

The  subject-matter  of  a  contract  ma}*  be  valued,  or  the  damages  in 
case  of  a  breach  ma}'  be  liquidated  in  advance.  In  the  present  case, 
the  plaintiff  accepted  the  valuation  as  "just  and  reasonable."  The 
bill  of  lading  did  not  contain  a  valuation  of  all  animals  at  a  fixed  sum 
for  each,  but  a  graduated  valuation  according  to  the  nature  of  the 
animal.  It  does  not  appear  that  an  unreasonable  price  would  have 
been  charged  for  a  higher  valuation. 

The  decisions  in  this  country  are  at  variance.  The  rule  which  we 
regard  as  the  proper  one  in  the  case  at  bar  is  supported  in  Newburger 
V.  Howard,  6  Philadelpliia  Rep.  174;  Squire  v.  New  York  Central 
R.  R.  Co.,  98  Massachusetts,  239  ;  Hopkins  v.  Westcott,  6  Blatchf  64  ; 
IJelger  v.  Dinsmore.  51  New  York,  1G6;  Oppenheimer  v.  United  States 
Express  Co.,  69  Illinois,  62  ;  Magnin  v.  Dinsmore,  56  New  York,  168, 
and  62  New  York,  35,  and  70  New  York,  410  ;  Earnest  r.  Express  Co., 
1  Woods,  573  ;  P^lkins  v.  Empire  Transportation  Co.,  81*  Pennsylvania 
St.  315  -,  South  &  North  Alabama  R.  R.  Co.  v.  Henlein,  52  Alabama, 
606  ;  Same  v.  Same,  56  Alabama,  386  ;  Muser  v.  Holland,  17  Blatchf. 
412  ;  Harvey  v.  Terre  Haute  R.  R.  Co.,  74  Missouri,  538  ;  and  Graves 
V.  Lake  Shore  Ry.  Co.,  137  Massachusetts,  33.  The  contrary  rule  is  sus- 
tained in  Southern  Express  Co.  v.  Moon,  39  Mississippi,  822  ;  The  City 
of  Norwich,  4  Ben.  271  ;  United  States  Express  Co.  v.  Backraan,  28  Ohio 
St.  144;  Black  v.  Goodrich  Transportation  Co.,  55  Wisconsin,  319; 
Chicago,  St.  Louis  &  N.  O.  R.  R.  Co.  v.  Abels,  60  Mississippi,  1017; 
Kansas  City,  &c..  Railroad  Co.  v.  Simpson,  30  Kansas,  645 ;  and 
Moulton  V.  St.  Paul,  &c.  R.  R.  Co.,  31  Minnesota,  85.  We  have  given 
consideration  to  the  views  taken  in  these  latter  cases,  but  are  unable 
to  concur  in  their  conclusions.  Applying  to  the  case  in  hand  the 
proper  test  to  be  applied  to  ever}'  limitation  of  the  common-law  liabilit}' 
of  a  carrier — its  just  and  reasonable  character  —  we  have  reached 
the  result  indicated.  In  Great  Britain,  a  statute  directs  this  test  to 
be  applied  by  the  courts.  The  same  rule  is  the  proper  one  to  be 
applied  in  this  country,  in  the  absence  of  an}'  statute. 

As  relating  to  the  question  of  the  exemption  of  a  carrier  from  lia* 


540         GRAVES  V.    LAKE  SHORE,  ETC.  RAILROAD. 

bility  beyond  a  declared  value,  reference  ma}'  be  made  to  section  4281 
of  the  Eevised  Statutes  of  the  United  States  (a  re-enactment  of  sec- 
tion 69  of  the  Act  of  February  28,  1871,  ch.  100,  16  Stat.  458),  which 
provides,  that  if  anj'  shipper  of  certain  enumerated  articles,  which 
are  generally  articles  of  large  value  in  small  bulk,  "  shall  lade  tlic 
same,  as  freight  or  baggage,  on  any  vessel,  without  at  the  time  of  such 
lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such  vessel  re- 
ceiving the  same,  a  written  notice  of  the  true  character  and  value 
thereof,  and  having  the  same  entered  on  the  bill  of  lading  therefor, 
the  master  and  owner  of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  anv  form  or  manner,  nor  shall  an}-  such  master  or  owner 
be  liable  for  any  such  goods  be3-ond  the  vahie  and  according  to  the 
character  thereof  so  notified  and  entered."  The  principle  of  this 
statute  is  in  hai*mony  with  the  decision  at  which  we  have  arrived. 

The  plaintiff  did  not,  in  the  course  of  the  trial,  or  by  an}'  request 
to  instruct  the  jury,  or  b}-  any  exception  to  the  charge,  raise  the  point 
that  he  did  not  fully  understand  the  terms  of  the  bill  of  lading,  or 
that  he  was  induced  to  sign  it  b}-  an}'  fi'aud  or  under  any  misapprehen- 
sion. On  the  contrary,  he  offered  and  read  in  evidence  the  bill  of 
lading,  as  evidence  of  the  contract  on  which  he  sued. 

The  distinct  ground  of  our  decision  in  the  case  at  bar  is,  that  where 
a  contract  of  the  kind,  signed  by  the  shipper,  is  fairly  made,  agreeing 
on  the  valuation  of  the  property  carried,  with  the  rate  of  freight  based 
on  the  condition  that  the  carrier  assumes  liability  only  to  the  extent 
of  the  agreed  valuation,  even  in  case  of  loss  or  damage  by  the  negli- 
gence of  the  carrier,  the  contract  will  be  upheld  as  a  proper  and  lawful 
mode  of  securing  a  due  proportion  between  the  amount  for  which  the 
carrier  may  be  responsible  and  the  freight  he  receives,  and  of  protect- 
ing himself  against  extravagant  and  fanciful  valuations.  Squire  v. 
New  York  Central  R.  R.  Co.,  98  Massachusetts,  239,  245,  and  cases 
there  cited. 

There  was  no  error  in  excluding  the  evidence  offered,  or  in  the  charge 
to  the  jury,  and  the  judgment  of  the  Circuit  Court  is 

Affirmed} 


GRAVES  V.    LAKE    SHORE    AND    MICHIGAN    SOUTHERN 

RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts,  1884. 

[137  Mass.  33.] 

Morton,  C.  J.  The  defendant,  as  a  common  carrier,  received  at 
Peoria,  Illinois,  seventy-five  liarrels  of  high  wines,  and  agreed  to  de- 
liver them  to  the  plaintiffs  at  Boston,   in  this  Commonwealth.     The 

1  Compare:  Graves  v.  Adams  E.\press  Co.,  176  Mass.  280;  Ballou  v.  Earle,  !V 
R.  L  441.  — Ed. 


GRAVES  V.   LAKE  SHORE,  ETC.  RAILROAD.  541 

bill  of  lading  contained  the  stipulation  that  the  goods  were  "  shipped 
at  an  agreed  valuation  of  $20  per  barrel,  owner's  risk  of  leakage."  It 
also  contained  the  agreement,  that,  "  in  the  event  of  the  loss  of  any 
l)roperty  for  which  responsibility  attaches  under  this  bill  of  lading  to 
the  carriers,  the  value  or  cost  of  the  same  at  the  time  and  point  of  ship- 
ment is  to  govern  the  settlement,  except  the  value  of  the  articles  has 
been  agreed  upon  with  the  shipper,  or  is  determined  by  the  classifica- 
tion upon  which  the  rates  are  based." 

The  defendant  had  no  knowledge  of  the  value  of  the  goods  except 
that  furnished  by  the  statement  of  the  shippers,  and  the  charge  for 
transportation  was  based  upon  this  statement  and  valuation.  The 
goods  were  destroyed  during  the  transit  by  a  collision  of  two  trains, 
occasioned  by  the  negligence  of  the  servants  of  the  defendant.  The 
onl}'  question  presented  is  whether  the  plaintiffs  can  recover  any  more 
than  the  agreed  valuation  of  the  goods. 

Tlie  question  whether  a  carrier  can,  b}'  a  special  contract,  exempt 
himself  from  liability  for  a  loss  arising  from  the  negligence  of  himself 
or  his  servants,  is  one  which  has  been  much  discussed,  and  upon 
which  the  adjudications  are  conflicting.  If  we  adopt  the  general  rule, 
that  a  carrier  cannot  thus  exempt  himself  from  responsibility,  we  are 
of  opinion  that  it  does  not  cover  the  case  before  us,  which  must  be 
governed  b}'  other  considerations.  The  defendant  has  not  attempted 
to  exempt  itself  from  liabilit}-  for  the  negligence  of  its  servants.  It 
has  made  no  contract  for  tliat  purpose,  but  admits  its  responsibility  ; 
its  claim  is,  that  the  plaintiffs,  having  represented  and  agreed  that  the 
goods  are  of  a  specified  value,  and  having  thus  obtained  the  benefit  of 
a  diminislied  rate  of  transportation,  are  now  estopped  to  claim,  in  con- 
tradiction of  their  representation  and  agreement,  that  the  goods  are  of 
a  greater  value. 

It  is  the  right  of  the  carrier  to  require  good  faith  on  the  part  of  those 
persons  who  deliver  goods  to  be  carried,  or  enter  into  contracts  with 
him.  The  care  to  be  exercised  in  transporting  property,  and  the  rea- 
sonable compensation  for  its  carriage,  depend  largely  on  its  nature 
and  value,  and  such  persons  are  bound  to  use  no  fraud  or  deception 
wliich  would  mislead  him  as  to  the  extent  of  the  duties  or  the  risks 
which  he  assumes.  It  is  just  and  reasonable  that  a  carrier  should  base 
his  rate  of  compensation,  to  some  extent,  upon  the  value  of  tlie  goods 
carried  ;  this  measures  his  risks,  and  is  an  important  element  in  fixing 
his  compensation.  If  a  person  voluntaril}'  represents  and  agrees  that 
the  goods  delivered  to  a  carrier  are  of  a  certain  value,  and  the  carrier 
is  thereby  induced  to  grant  him  a  reduced  rate  of  compensation  for  the 
carriage,  such  person  ought  to  be  barred  by  his  representation  and 
agreement.  Otherwise,  he  imposes  ui)on  tlie  carrier  the  obligations 
of  a  contract  different  from  that  into  which  he  has  entered.  Dunlap  v. 
International  Steamboat  Co.,  98  Mass.  371  ;  Judson  v.  "Western  Rail- 
road, 6  Allen,  486. 

The  plaintiflTs  admit  tliat  their  valuation  of  the  goods  would  be  con- 


542  GKAVES  V.    LAKE  SHORE,  ETC.  RAILROAD. 

elusive  against  them  in  case  of  a  loss  from  any  other  cause  than  the 
negligence  of  the  carrier  or  its  servants  ;  but  contend  that  the  contract 
does  not  fairl}'  import  a  stipulation  of  exemption  from  responsil)ility 
for  such  negligence.  We  cannot  see  the  justice  of  this  distinction. 
Looking  at  the  matter  practically,  everybody  l<nows  that  the  charges 
of  a  carrier  must  be  fixed  with  reference  to  all  the  risks  of  the  carriage, 
including  the  risk  of  loss  from  the  negligence  of  servants.  In  the 
course  of  time,  such  negligence  is  inevitable,  and  the  business  of  a 
carrier  could  not  be  carried  on  unless  he  includes  this  risk  in  fixing 
his  rates  of  compensation.  When  the  parties  in  this  case  made  their 
contract,  it  is  fair  to  assume  that  both  had  in  mind  all  the  usual  risks 
of  the  carriage.  It  savors  of  refinement  to  suppose  that  they  under- 
stood that  the  valuation  of  the  goods  was  to  be  deemed  to  be  fixed  if 
a  loss  occurred  from  some  causes,  but  not  fixed  if  it  occurred  from 
the  negligence  of  the  servants  of  the  carrier.  Such  does  not  seem  to 
us  to  be  the  fair  construction  of  the  contract. 

The  plaintiffs  voluntarilj'  entered  into  the  contract  with  the  defend- 
ant ;  no  advantage  was  taken  of  them  ;  they  deliberately  represented 
the  value  of  the  goods  to  be  %'20  per  barrel.  The  compensation  for 
carriage  was  fixed  upon  tliis  value  ;  the  defendant  is  injured  and  the 
plaintiffs  are  benefited  b^^  this  valuation,  if  it  can  now  be  denied.  We 
are  of  opinion  that  the  plaintiffs  are  estopped  to  show  that  it  was  of 
greater  value  than  that  represented.  Tlie  plaintiffs  cannot  recover  a 
larger  sum  without  violating  their  own  agreement.  Although  one  of 
the  indirect  effects  of  such  a  contract  is  to  limit  the  extent  of  tlie  re- 
sponsibility of  the  carrier  for  the  negligence  of  his  servants,  this  was 
not  the  purpose  of  the  contract.  We  cannot  see  that  any  considera- 
tions of  a  sound  public  polic}-  require  that  such  contracts  should  be 
held  invalid,  or  that  a  person,  who  in  such  contract  fixes  a  value  upon 
his  goods  which  he  intrusts  to  the  carrier,  should  not  be  bound  by  his 
valuation.  M'Cance  v.  London  &  North  Western  Railway,  7  II.  &  N. 
437  ;  8.  c.  3  H.  &.  C.  343  ;  Railroad  v.  Fraloff,  100  U.  S.  24  ;  Muser 
v.  Holland,  17  Blatchf.  C.  C.  412;  s.  c.  1  Fed.  Rep.  382  :  Hart  v. 
Pennsylvania  Railroad,  2  McCrary,  333;  s.  c.  7  Fed.  Rep.  630  ;  Mag- 
nin  V.  Dinsmore,  70  N.  Y.  410. 

We  are  tlierefore  of  opinion,  upon  the  facts  of  this  case,  that  it  was 
not  competent  for  the  plaintiffs  to  show  tliat  the  value  of  the  goods 
lost  was  greater  than  $20  per  barrel. 

Judgment  affirmed} 

1  Compare:  The  Lydian  Monarch,  23  Fed.  298;  Brown  v.  S.  S.  Co.,  147  Mass.  58. 
—  Ed. 


INDEX    or   SUBJECTS. 


[only  general  topics  are  listed.] 


APPLICANTS, 

all  must  be  served,  1-100. 

what  grounds  for  refusal,  141-146. 

prerequisites  of,  298-.S1.5. 

no  discrimination  between,  412-416. 

BAILMENT, 

essential  to  carriage,  8-18. 

baggage,  128-134. 

compensation  necessary,  126-134. 

care  necessary,  passengers.  191-195. 

responsibility  for  goods,  21.5-282. 

limitation  of  liability,  493-542. 
BRIDGE   COMPANIES, 

in  public  calling,  21-22. 

regulation  of  rates  of,  340. 

CANAL   COMPANIES, 

in  public  calling,  65-66. 

regulations  of,  213-214,  446-449. 

rates  of,  405-409. 
CARRIERS   COMPANIES, 

in  public  calling,  1-18,  56-66. 

service  of  all,  100-134,  145-179,  189-191. 

provision  for  adequate  facilities,  192-198,  202-212,  215-283. 

rates  of,  283-301,  322-340. 

discriminations  by,  354-402,  410-456. 

regulations  of,  45b-462,  483-490. 

limitation  of  liability  by,  493-542. 
CHARTER   PROVISIONS, 

obligatory,  27-28. 

excuses,  62-66. 

evasions,  306. 
COMPENSATION, 

if  none,  126-134. 

when,  301-322. 

reasonable,  322-333. 

computation  of,  333-353. 

DISCRIMINATION, 

what  constitutes,  282-363. 
examples  of,  363-400. 
what  forbidden,  400-446. 


544  INDEX   OF   SUBJECTS. 

ELECTRIC   LIGHT  COMPANIES, 

in  public  calling,  4i-48. 

rates  of,  308-312. 
EMINENT    DOMAIN, 

a  badge  of  public  calling,  26-27. 

applications  of  this,  27-70. 
EQUALITY, 

all  applicants  to  be  taken,  100-136. 

no  distinction  between  competitors,  136-176. 

no  discriminations,  353-446. 
EXPRESS   COMPANIES, 

in  public  calling,  135-137. 

relations  to  carriers,  148-160. 

FACILITIES, 

due  care  required,  191-204. 
adequate  facilities,  204-252. 
equal  facilities,  252-282. 

GAS   COMPANIES, 

in  public  calling,  41-44. 
supply  of  applicants,  66-68. 

upon  equal  terms,  100-134,  137-138,  141,  186-189. 
rates  of,  298-308,  4G5-468. 
discriminations  by,  412-414. 
regulations  of,  164-468. 
GUESTS, 

proper  must  be  taken,  21-28. 
who  are,  25,  100. 
accommodations  for,  201. 
regulations,  450-456. 

HACKMEN, 

in  public  calling,  75. 
excluded  from  terminals,  168-176. 
HOTEL   COMPANIES, 

in  public  calling,  21-25,  100. 
provision  for  all,  130,  134. 
accommodations,  201. 
lien,  290. 
regulations,  450-456. 

IRRIGATION   COMPANIES, 

in  public  calling,  37-41. 
rates  of,  301-305. 

LIEN, 

when  can  service  be  refused,  141-146. 

extent  of,  2b2-2ft0. 

loss  of,  29(1-2!).') 
LIMITATION   OF    Ll.MULTTY, 

the  general  doctrine,  492-542. 
LOG   DRIVE   COMPANIES, 

in  public  calling,  27-30. 


INDEX   OF   SUBJECTS.  545 


MOXOPOLIES, 

legal,  27-30. 

strikes  may  be,  60-61. 

nature  of,  90-93. 

incidents  of,  93-100. 

forbidden, 186-191. 
MUNICIPAL   CORPORATIONS, 

subject  to  public  service  law,  417-418. 

NATURE  OF  PUBLIC  CALLING, 

distinguished  from  private,  1-8. 

tests  to  determine,  8-70. 

essentials  of,  70-100. 
NAVIGATION    COMPANIES, 

in  public  calling,  5-12. 
NEWS   COMPANIES, 

in  public  calling,  53-55. 

OBLIGATIONS   OP   PUBLIC   SERVICE, 

to  serve  all,  100-191. 

with  adequate  facilities,  191-282. 

for  reasonable  consideration,  282-353. 

without  discrimination,  353-446. 
OFFICERS, 

regulations  of,  490-492. 

PASSENGERS, 

proper,  must  be  taken,  100-118. 

provision  for  safe  carriage,  191-194. 

with  seats,  194-198. 

requisite  stations,  202-206. 

proper  protection,  206-213. 

no  discriminations,  392. 
POLICE   POWER, 

extent  of,  over  public  calling,  44-47. 

regulation  of  rates,  70-100. 

power  of  commissions,  363-446. 
PUBLIC   CALLINGS, 

carriers  companies  in,  8-18,  56-66. 

express  companies  in,  135-137. 

bridge  companies  in,  27-28. 

subway  companies  in,  34-36. 

log  drive  companies  in,  27-30. 

water  companies  in,  34-36. 

sewerage  companies  in,  417. 

irrigation  companies  in,  37-41. 

gas  companies  in,  41-44. 

electric  companies  in,  44-48. 

telephone  companies  in,  48-52. 

telegraph  companies  in,  52-55. 

hotel  companies  in,  34-36. 

stockyards  companies  in,  316. 

warehouse  companies  in,  70-100. 

35 


546  INDEX   OF   SUBJECTS. 

REGULATIONS, 

examined,  446-473. 
hours,  475-483,  489-492. 
time  tables,  483-486. 
classification,  487-489. 
RIGHTS   OF   PUBLIC    CALLING, 
to  make  regulations,  446-492. 
to  enter  into  contracts,  493-542. 

SEWERAGE   SERVICE, 

in  public  calling,  417-418. 
SHIPPERS, 

transportation  of  goods,  215-282. 

discriminations  between,  353-446. 
SLEEPING   CAR   COMPANIES, 

in  public  calling,  139-140. 

regulations  of,  199-200. 
STREET   RAILWAY   COMPANIES, 

in -public  calling,  297. 

fares  of,  344-348. 
SUBWAY   COMPANIES, 

in  public  calling,  30-33. 
SUPPLY, 

what  grounds  for  refu""!,  141-145. 

prerequisites  of,  298-..x5. 

no  discrimination  in,  403-404,  412-416,  417-420. 

TELEGRAPH   COMPANIES, 

in  public  calling,  52-55. 

regulations  of,  463-464,  475-483. 
TELEPHONE   COMPANIES, 

in  public  calling,  48-52.  , 

must  serve  all,  142-145,  179-186. 

with  adequate  facilities,  202. 
TOWING   COMPANIES, 

in  public  calling,  16-18. 
TRUCKING   COMPANIES, 

in  public  calling,  2-5. 

WAREHOUSE   COMPANIES,  ? 

in  public  calling,  70-100. 

lien  of,  285. 
WATER   COMPANIES, 

in  public  calling,  34-36. 
rates  of,  363. 
discriminations  by,  403. 
regulations  of,  468-475. 


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